The Logic of Persecution: Free Expression and the McCarthy Era 9781503624177

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The Logic ofPersecution

The Logic ofPersecution Free Expression and the McCarthy Era

Martin H. Redish

STANFORD UNIVERSITY PRESS STANFORD, CALIFORNIA

Stanford University Press Stanford, California

© 200 5 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press.

Library of Congress Cataloging-in-Publication Data Redish, Martin H. The logic of persecution : free expression and the McCarthy era I Martin H. Redish. p. em. Includes bibliographical references and index. ISBN o-8047-4804-7 (cloth: alk. paper) ISBN o-8047-5593-0 (pbk.: alk. paper) I. Freedom of expression-United States-History-2oth century. 2. Freedom of speech-United States-History-2oth century. 3· Political persecution-United States-History-2oth century. 4· Anti-communist movements-United States-History-2oth century. 5· McCarthy, Joseph, 1908-19 57· I. Title. KF4770.R434 2005 342.7308'53-DC22 2005002980 Original Printing 200 5 Last figure below indicates year of this printing: 14 13 12 II IO 09 08 07 06

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Contents

I

Introduction: Logic, History, and the McCarthy Era

I

2

The Legal Topography of the McCarthy Era

23

3 McCarthyism, Free Expression, and the Role of Pathology in American History

46

4 Unlawful Advocacy, Free Speech, and the McCarthy Era

63

5 HUAC, The Hollywood Ten, and the First Amendment

Right of Nonassociation

I32

6 Public Education, Free Speech, and the McCarthy Era

I72

7 Conclusion: The McCarthy Era as a First Amendment Laboratory

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Notes Index

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297

Preface

This book grew out of an undergraduate seminar I was asked to teach in the winter of 2000. The request was that I teach a seminar on the subject of the cold war and the Constitution to a group of elite American Studies majors. I agreed, thinking that I could simply combine many of the important free speech cases from the era with some of the key historical works about the period. When I began to examine the state of historical scholarship concerning the so-called McCarthy era of the late 1940s and early 19 50s, I quickly realized that my task would not be nearly as simple as I had assumed it would be. I discovered that at various points in the 1990s, previously unknown documents had been revealed that effectively turned the state of historical scholarship on the subject upside down. The view that I had grown up with-that all the talk about espionage on the part of American communists had been grossly exaggerated by anticommunists, simply as a fig leaf to cover what amounted to little more than the persecution of those who held unpopular political views-now seemed to have been totally inaccurate. It now appeared that the Communist Party of the United States had, in fact, been run completely by the Soviet government in Moscow and that American communists had been heavily involved in espionage or the facilitation of espionage. Although these revelations no doubt challenged many of the most basic assumptions I held about the McCarthy era, my many years as a scholar of free expression made me realize that the insights of free speech theory were relevant to a full understanding of the period. Yet to date, none of the current group of historians to have spoken on the subject has ever sought to add that theoretical perspective. That is exactly what I intend to accomplish with the publication of this book. My goals here are threefold. First, I hope to reshape the modern historical debate about the McCarthy era by adding the perspective of free speech theory. Second, I hope to use the McCarthy era as a type of First

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Preface

Amendment laboratory, and in that way enable me to rethink many fundamental issues of free speech theory in light of the insights derived from synthesizing First Amendment thought with the insights of historians of the era. Finally, I hope to fuse two distinct areas of scholarship in a manner that will benefit both forms of intellectual inquiry. I should make clear at the outset that although history plays an important role in this book, I am not a trained historian, and I do not purport to provide newly discovered historical information to an already crowded field. To the extent the book describes historical events, then, it does so by drawing on the works of the many great historians who have recently written on the subject. However, I do consider myself to be an experienced constitutional scholar and free speech theorist, and it is by blending my insights from that perspective with the valuable recent work of professional historians that I hope and expect to make my contribution. There are many people without whom this book would not have been possible. They deserve special thanks. Initially, I should note that although all but one of the chapters in this book were written especially for the book, two of the chapters were published as articles, coauthored with former law students. Chapter 5 is a modified version of the article, Martin H. Redish & Christopher McFadden, HUAC, the Hollywood Ten, and the First Amendment Right of Non-Association, 8 5 Minnesota Law Review r669 (2oor). Chapter 6 is an expanded and modified version of the article, Martin H. Redish & Kevin Finnerty, What Did You Learn in School Today?: Free Speech, Values Inculcation, and the Democratic-Educational Paradox, 88 Cornell Law Review 62 (2002). Both Chris McFadden and Kevin Finnerty deserve substantial credit for the portions of the chapters that are derived from their respective coauthorships. Also, Scott Watson contributed significantly to the shaping of Chapter 4· Aversion of that chapter was published in the Cincinnati Law Review. Allarticles are reproduced with the permission of the respective law reviews. I should also note that portions of Chapter 3 are derived from Martin H. Redish, The Role of Pathology in First Amendment Theory: A Skeptical Examination, 38 Case Western Reserve Law Review 6r8 (r988). The book benefited from several workshops that I conducted or symposia to which I contributed. In particular, I was helped significantly by input from the faculties of Emory Law School, the University of Minnesota Law School, the University of Illinois College of Law, Northwestern University School of Law, and the University of Cincinnati College of Law, where I spoke about Chapter 4 as the 2004 RobertS. Marx Distinguished Lecturer. The book also benefited substantially from the tireless work of Northwestern Law students who helped me with research over the last several

Preface

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years, including Andrea Ellman, Ellen Endrizzi, Ethan Hastert, Betsy Judelson, and Andrew Mathews. My administrative assistant, Ingrid Hoffius, made the book possible with her many hours of efficient work. Also, Dean David Van Zandt of the Northwestern University School of Law, who provided me with substantial research support and encouragement as I toiled over the pages that are to follow, was enormously helpful to me. Finally, my most special thanks are reserved for the three people in this world that I love and admire most, my wife Caren, and my daughters Jessica and Elisa. Here's hoping that none of them will ever have to live through another period in American history like the one described in this book.

The Logic ofPersecution

CHAPTER ONE

Introduction: Logic, History, and the McCarthy Era Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideasthat the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. -Supreme Court Justice Oliver Wendell Holmes Jr., dissenting in Abrams v. United States, 250 U.S. 6r6, 630 (1919)

To historians, the cold war in recent years has become quite hot. More than twenty years after the historical book on the so-called McCarthy era of the late 1940s and early 1950s in the United States appeared to have been irrevocably sealed, startling revelations in the 1990s of previously secret documents-documents whose very existence was unknown except to a very few-appeared to dramatically alter wellaccepted understandings of historians about this troubled period in American history. During that era, when the nation first began to grasp the gravity of the threat posed by the Soviet Union and the Eastern bloc nations to our national security, both the government and private institutions imposed extensive and severe punishment on American commu-

2

Introduction

nists, and often any American who at one time had been a communist (or even suspected of being a communist) and who failed to repudiate those connections. Once the McCarthy era ended, historians vigorously debated whether such suppression was ever justified by anything other than the nation's naked ideological repugnance for communism. Many concluded that, whatever dangers the Soviet Union and its allies may have presented, American communists caused no real threat to our internal security. Rather, the expression of national security concerns was merely a subterfuge, strategically designed to justify the persecution of those who held repugnant political views. Others, however, continued to see American communists as nothing more than a tool of Joseph Stalin and the Soviet Union. In the words of a respected group of historians, " [t ]o their admirers and defenders, American Communists [were] usually ... seen as idealistic and committed radical populists. They built unions, fought for racial and social equality, and battled fascism, often prodding their reluctant fellow citizens to live up to America's democratic ideals." 1 However, "[t]o their enemies, American Communists were 'soldiers of Stalin,' committed to a totalitarian philosophy and willing to alter their political stance whenever it suited the foreign policy needs of the Soviet Union. " 2 By the early I97os, the view that American communists had presented no real threat had become the dominant position among American historians.3 The fears of the dangers presented by American communists that had dominated American society during the period in question were generally "dismissed as the product of paranoid fears created by third-rate spy novels. " 4 Certainly, those scholars who adopted this so-called revisionist view argued, whatever minimal threat to which the Communist Party of the United States of America (CPUSA) actually gave rise failed to justify the widespread suppression of American communists that took place during the period in question. The true rationale for the suppression of American communists, according to the revisionists, was not really a threat to national security, but rather the ideological offensiveness of the views expressed by American communists. 5 In the words of the two leading modern historians on the subject, John Earl Haynes and Harvey Klehr, "[i]f one were to read [the] early revisionists' writings and nothing else, one would gain the impression that the CPUSA was largely a figment of the anticommunist imagination and that anticommunists were simply paranoids embarked on a hunt for imaginary witches." 6 Moreover, "[w]here early revisionists had dismissed American communists as so unimportant that public fears about them were irrational, the second wave of revisionists believed communists to have been important shapers of American politics and culture." 7

Logic, History, and the McCarthy Era

3

Those who vigorously opposed communism during the McCarthy era did so for a variety of reasons: fear on the part of American business people that communism would undermine well-established principles of American capitalism; antagonism on the part of religious Catholic Eastern European immigrants who had themselves witnessed the viciousness of communist suppression firsthand; and concern by American liberals about the totalitarian threat to human rights and democracy that communism presented. 8 From the revisionist perspective, then, all of the seemingly wild allegations of American communist espionage or attempted overthrow made during the 1940s and 1950s were, for the most part, unsupported or even concocted means of discrediting American communists, designed to justify the suppression by both public and private levels of American society. 9 For much of the latter part of the twentieth century, this view was so widely accepted that few scholars bothered to challenge it seriously. 10 As the last decade of the century dawned, this well-accepted view was about to change dramatically. It was the revelation of two sets of previously unavailable documents, one in the United States and one in the former Soviet Union, that jolted the relatively peaceful world of mid-twentieth-century American political history. Although "[t]he revisionists ... either denied or downplayed arguments about what others have described as the dark side of American communism," these documents, according to the historians who initially reviewed them, "provided a powerful challenge to the revisionist perspective." 11 The first set of documents to be made known to the world in the 1990s were the so-called Comintern documents, named after the entity in the Soviet Union that for many years had supervised communist parties throughout the world. 12 The documents were made available, in a limited manner, by the Russian government to selected American historians after the fall of the Soviet Union. After the revelations of Comintern were made known, "[i]t [was] no longer possible to maintain that the Soviet Union did not fund the American party, that the CPUSA did not maintain a covert apparatus, and that key leaders and cadres were innocent of connection with Soviet espionage." 13 These documents established that the CPUSA had never functioned as an independent political organization. Indeed, according to the historians who reviewed the documents, apparently "there was never a time when the CPUSA made its decisions autonomously, without being obliged to answer to or-more preciselywithout wishing to answer to Soviet authority. " 14 An even more startling historical jolt came in 199 5, with the declassification of the highly secret Venona documents. These were previously

4

Introduction

unknown decryptions of cable messages sent by agents of the Soviet intelligence service, the KGB, in America back to officials in Moscow. The United States had originally begun the secret decryption program in 1943, in order to determine whether the Soviet Union was seriously pursuing a separate peace with Nazi Germany. By the time that American intelligence officials had deciphered the first messages in 1946, the war was over and the program's initial goal was therefore rendered superfluous. What the United States agents learned, however, proved far more important than an answer to the original inquiry. In the words of historians Haynes and Klehr, "[e]spionage, not diplomacy, was the subject of these cables." 15 The United States discovered 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 the CPUSA's so-called secret apparatus-cadres of specially recruited American communists who were fiercely loyal to the party and its goals. 16 Since the revelations of Venona in the mid-r990s, numerous books on the subject or closely related matters have been published. 17 Many have been highly critical of American communists during the McCarthy era and antagonistic to the revisionist view, 18 although one of the glaring exceptions is the articulate-if controversial-defense of the revisionist view made by Ellen Schrecker in her book Many Are the Crimes: McCarthyism in America. 19 Even after the revelations of Venona, Schrecker (who, in the paperback edition of her book, candidly acknowledged that "[f]or some reason, this book touched an ideological nerve") wrote openly of "the political repression of the McCarthy era" and the "[d]istorted" perception of "a lockstep party and the automatons within its ranks." 20 Although she conceded "that some genuinely damaging espionage did take place," 21 she also sought to defend those involved. "Unlike Soviet agents later in the Cold War," she argued, "the men and women who gave information to Moscow in the 1930s and 1940s did so for political, not pecuniary, reasons. They were already committed to communism and they viewed what they were doing as their contribution to the cause." 22 Schrecker further asserted that American communists were simply "internationalists," whose loyalty went beyond national boundaries. 23 Finally, she noted, "most of their espionage took place during World War II, when the United States and the Soviet Union were on the same side. These people were not, therefore, spying for an enemy. " 24 Thus, although Schrecker does not completely dismiss the impact of the Venona documents, 25 she does seek to dilute or deflect the force of their impact. In contrast to Schrecker, a number of revisionist scholars have ac-

Logic, History, and the McCarthy Era

5

knowledged the untenability of their position in light of the revelations of Venona. 26 At the same time, since the revelations of the Comintern and Venona documents, a number of anticommunist commentators have claimed varying degrees of vindication for the treatment given to American communists during the cold war. 27 As Haynes and Klehr have argued, "[w]hat Ellen Schrecker is still unable to understand is that American communism declined because of the determined campaign by anticommunists of every political hue." Soviet intelligence agencies abandoned use of the CPUSA, they claim, "not because they had developed ethical objections to this strategy or because the CPUSA had developed moral objections to it. Soviet intelligence abandoned use of the CPUSA for espionage because it had become risky. Had the U.S. government and the American public not adopted anticommunist policies, [Soviet intelligence agencies] would have happily continued as before." 28 Although the debate among historians has continued unabated, an important perspective appears to have been ignored by all involved. None of the historians on either side of the historical debate has attempted an in-depth consideration of the implications of the theory of free expression for a proper understanding of the McCarthy era in a post-Venona world. The point to be made in this book is that the post-Venona McCarthy era is sorely in need of close examination through the lens of constitutional analysis. When one adds to the debate the perspectives of the First Amendment right of free speech and the political theory of free expression, I believe, one is able to recognize complexities on both sides of the historical debate that have been largely ignored by the historians. Initially, when one includes the First Amendment perspective in assessing the implications of the Comintern and Venona documents, it becomes clear that the modern anticomqmnist commentators have grossly overstated the logical implications of the revelations, even assuming their total accuracy. This is in no way to suggest that the revelations contained in these documents are insignificant. The point, rather, is that the documents' revelations do not free the government from all moral and political condemnation for its behavior during the McCarthy era. To be sure, the Venona documents clearly appear to support the allegations of and prosecutions for espionage against numerous American communists, many of whom served at shockingly high levels of the federal government, including Assistant Secretary of the Treasury Harry Dexter White, administrative assistant to the president Lauchlin Currie, and high-ranking State Department official Alger Hiss. 29 There now appears to be little question that many of the allegations of espionage made during the I94os that seemed wild to many were, in fact, completely accurate. Several scholars and commentators on the political left have ques-

6

Introduction

tioned the veracity of the documents, but absent some affirmative reason to doubt their validity, it would seem reasonable to assume their accuracy. Because code names were used in the decoded messages, one might raise doubt as to the conclusions reached as exactly to whom the messages refer. But even assuming that these doubts are reasonable as to specific individuals, it does not alter the fact that somebody engaged in the behavior described in the messages. Unless the inquiry in question focuses on the identity of a particular individual, then, any doubt as to specific names is largely irrelevant to the broader issue of the role played by American communists in Soviet espionage. 30 There can of course be no doubt that, assuming their accuracy, these revelations are of enormous historical interest and value. But to suggest that as a result the government's treatment of American communists was totally justified amounts to a non sequitur because it completely ignores what I call the "act-response dissonance." Although a limited portion of the government's legal response focused on prosecutions for espionage or espionage-related activities,31 much of it did not. On the contrary, among the most noteworthy-and controversial-elements of the government's legal strategy during the period was the prosecution of the leaders of the CPUSA, not for espionage but rather for conspiracy to violate the Smith Act's criminal prohibitions on organizing the teaching or advocacy of the government's violent overthrow. 32 Commentators have been far too quick to treat these two forms of behavior as fungible. For example, Haynes and Klehr, by far the most important and perceptive anticommunist historians, assert that the information contained in the Venona documents at the time "lay behind the 1948 decision by the Truman administration to prosecute Eugene Dennis and other CPUSA leaders under the sedition sections of the Smith Act." 33 They also treat the concepts of espionage and subversion as if the two were interchangeable forms of behavior. 34 However, from the perspective of free speech theory, as well as political reality, there are enormous differences between the two types of activity. Espionage consists of the communication or transfer of classified or otherwise secret information or documents to foreign powers. In contrast, advocacy of unlawful conduct does not, by its nature, involve such transfers. Instead, its focus is an attempt to persuade free-thinking individuals to adopt a particular course of behavior. In its narrowest and most direct form, at least, 35 espionage is of little or no concern to the values sought to be fostered by the First Amendment's guarantee of free expression. Probably no theory of free expression would extend protection to this form of communication. The clandestine passage of classified information to agents of a foreign power fails

Logic, History, and the McCarthy Era

7

meaningfully to advance the democratic process or further personal selfrealization through intellectual development of either speaker or listener. Nor does espionage advance the state of public knowledge. Indeed, it is arguable that such activity should not even be deemed "speech" in the first place, but rather the use of communicative powers to perform a nonexpressive act. 36 To the extent any self-realization value is involved in the conduct of espionage, regulation of the act is focused primarily on its nonexpresstve consequences. Most forms of "subversion" through expression, in contrast, go to the very heart of what the First Amendment right of free speech is all about. 37 At its foundation, the First Amendment right of free expression is concerned with the ability of one free-willed individual to persuade or inform other free-willed individuals within the polity, for the purpose of having the readers or listeners take certain actions or assume certain social, political, or aesthetic positions. 38 Although the classic form of espionage inherently fails to achieve these ends, political advocacy of any variety generally does so. It is true that not all attempts to persuade others to engage in illegal conduct receive First Amendment protection. 39 But the Supreme Court has long recognized the serious dangers to First Amendment protection flowing from governmental efforts to suppress attempts by private individuals at political persuasion. 40 In light of the total absence of evidence presented by the government to demonstrate even the remotest beginnings of an active American communist plan to attempt overthrow, 41 the "subversion" for which communist leaders were prosecuted in the 1940s and 1950s effectively amounted to very little more than punishment for the holding of unpopular ideas. 42 From a constitutional perspective, such suppression is therefore far more invidious than punishment for espionage. Moreover, the fact that an individual has engaged in such unprotected behavior as espionage in no way logically revokes constitutional protection for activity that falls under the First Amendment's umbrella. Thus, the argument that the Venona documents' revelations of extensive espionage or espionage facilitation on the part of American communists somehow justifies a governmental open season on American communists of the period is logically unsupportable. The preceding reference to the questionable logic of the government's response to American communist behavior underscores the central recurring theme throughout this book. I have chosen to title this book The Logic of Persecution. The term logic possesses several conceivable connotations in the context of First Amendment analysis, depending on the specific context in which the term is used. In one sense, the term may have an openly ironic use, as the famed excerpt from Justice Holmes's dissent in Abrams v. United States, 43 with which this chapter began, ef-

8

Introduction

fectively illustrates. When Holmes asserts that "[p]ersecution for the expression of opinions seems to me perfectly logical," he is most assuredly not suggesting his agreement with such action. Rather, he intends the term to be viewed from the perspective of some perverse form of logic, where one has "no doubt of your premises or your power and want a certain result with all your heart." Thus, where a political society is grounded in an unwavering, transcendent ex ante commitment to a particular substantive value structure, the suppression of expression either attacking that value structure or advocating an alternative value structure makes perfect sense. In such a society, the logic of persecution is quite clear: such renegade speech is at best a nuisance and at worst directly harmful to the society's transcendent value system. For example, where a theocracy punishes blasphemers or the cold war nations of communistrun Eastern Europe punished anticommunist speech, it would be difficult to challenge the logic of such suppression, at least when viewed within the confines of that particular society's contours. Unwavering ex ante commitment to a higher normative moral framework logically justifiesindeed, dictates-the persecution of anyone who urges departure from that moral framework. Yet presumably Justice Holmes did not intend to imply that our society actually possesses such an ex ante transcendental commitment. On the contrary, as the remainder of his famous quotation quite clearly demonstrates, it was his view that in our constitutional democracy, "the ultimate good desired is better reached by free trade in ideas." Modern scholars have quite reasonably criticized Holmes's misguided reliance on a metaphor to the commercial marketplace. 44 Even if the metaphor is misplaced, however, I believe Holmes was appropriately seeking an understanding of free expression that is logically grounded in our society's fundamental commitment to the values of the democratic process-selfrule through representation and accountability. A foundational commitment to a democratic system necessarily implies total rejection of government's power to censor expression on the basis of normative disagreement with the views sought to be expressed. Political philosophers have long recognized the link between the right of free expression and the facilitation of the democratic process. This perspective begins with the premise that in a democracy, the voters are the real governors and those who function in government merely their agents. 45 Individuals are capable of performing their governing function in the voting both more effectively if they are able to read and listen to the expression of a wide variety of information and opinion concerning issues that face the polity. But because a democratic society is defined not by the substance of the decisions made but rather by the use of processes

Logic, History, and the McCarthy Era

9

of self-rule, popular sovereignty, and public accountability, 46 the external imposition of a priori substantive limitations on what society may do necessarily runs counter to the concept of a democracy as a definitional matter. It is of course true that the popular sovereignty inherent in the democratic form of government is today invariably constrained by constitutional limitations that seek to ensure the maintenance of minority rights and a free society. But even when a democracy is constrained by a countermajoritarian constitution, as ours is, ultimately the people, through the use of a predetermined supermajoritarian process, may amend that constitution to provide whatever they want it to provide. 47 Democracy, then, inherently requires that sovereignty ultimately reside in the people. Because free expression is designed, at least in part, to facilitate the workings of the democratic process, it logically follows that government may no more censor expression solely on grounds of normative disagreement with the views expressed than it may prohibit the populace from altering either the society's substantive policies or foundational governing structure. It is for this reason that the modern-day Supreme Court has invariably recognized that viewpoint-based restrictions of expression are unconstitutional. 48 One might reasonably ask, if the guarantee of free expression is grounded at least in part in notions of popular sovereignty, does it not logically follow that a majority of the populace be permitted to suppress the expression of views which that majority deems ideologically offensive? Such reasoning, however, is both shortsighted and overly simplistic. If every majority-backed government in power were automatically authorized to suppress the minority with whose views it disagrees, there would immediately be nothing left of the very democracy that put that majority in power in the first place. Instead, what began as a democratic society would have degenerated into a political state of nature, where all that matters is the struggle for political power. It is for that very reason that our democracy is restrained by a complex supermajoritarian constitutional structure. The framers recognized the reality of the democratic paradox, in which the foundations of democracy are preserved only by restraining the simple majority that happens to hold power. Thus, ademocratic society must commit itself to a principle of epistemological humility: no governmental body may impose restrictions on expression on the basis of predetermined moral values. The concept of epistemological arrogance that Justice Holmes mocked in his Abrams dissent, then, is "logical" only if one begins with internal premises concerning the relationship between a government and its populace that are anathema to our nation's commitment to foundational principles of popular sovereignty. When viewed from the perspective of American constitutional and

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Introduction

political theory, the persecution of American communists for nothing more than the offensiveness of their ideology would have been far from logical. One might respond, however, that in light of the dramatic revelations in the early 1990s of the Comintern documents, it should now be clear that American communists were clearly something other than mere freewilled ideologues. It is true that those documents unambiguously establish the existence of a close connection between American communist organizations and the government of the Soviet Union. Invariably, the policies of the Communist Party of the United States were dictated, either directly or indirectly, by the Soviet government. 49 It is also certainly the case that these revelations make clear that the CPUSA was far from a traditional political party of the type that functions within the borders of the United States. But it does not follow either that the expressive activities of American communists were as a result excluded from the First Amendment's protective scope or that their punishment in the Smith Act trials amounted to anything more than thinly veiled viewpoint-based persecution. It is today certainly conceivable that many organizations operating within the United States possess substantial allegiances to foreign governments or to political forces operating within other nations. This may be so for domestic organizations that support such nations as Israel, Italy, Ireland, or Palestine. Indeed, the list could go on and on. In many cases, these private organizations may, either formally or practically, link their own policies to those of a foreign power whose interests may or may not necessarily coincide with those of the United States. Yet it would be unreasonable on that basis to assume that the members of these organizations should automatically be deprived of their First Amendment rights. In deciding whether or not to view members of those organizations as free-willed individuals worthy of basic free speech protections, it is important to keep in mind that to the extent the members of these organizations adopt the positions of a foreign government, it is those members' voluntary choice to do so. That their chosen positions happen to align automatically with those of a foreign power may well justify political criticism of their method ofadopting political views, but it in no way justifies the suppression of those views. This does not mean, of course, that American communists could legally engage in espionage on behalf of the Soviet Union, any more than it means that American Jews could legally engage in espionage on behalf of Israel or that Irish Americans could engage in espionage on behalf of Ireland. It means only that citizens do not automatically lose their First Amendment right of free expression because they have chosen to make an unwavering commitment of political alle-

Logic, History, and the McCarthy Era

II

giance to another nation or because they seek to influence the nation's policies on behalf of that nation. In contrast to the persecution of American communist leaders for their ideologically driven viewpoints, which can be deemed "logical" only if one starts from political and constitutional postulates that are very different from our own, the punishment of American communists for engaging in classic espionage makes perfect sense, both on logical and practical grounds. As a general matter, a society has the inherent right to preserve its secrets from the eyes of foreign powers. Although the widespread public revelation of classified information could conceivably give rise to complex issues of First Amendment theory and doctrine, 50 when the information is clandestinely passed to the agents of a foreign poweras the Venona documents so clearly tell us it was both before and after the cold war began-none of those potential constitutional concerns anses. It is this vitally important distinction in forms of American communist behavior that appears to have been completely lost on both sides of the historical debate over the McCarthy era. The persecution of American communists for the expression of an unpopular viewpoint, even one that contemplates violent overthrow at some point (at least absent even a semblance of concrete planning or proximity), is "logical" only in the ironic sense described by Justice Holmes in his Abrams dissent-a logic that flows from undemocratic premises that presume a society's unquestioning acceptance of a particular set of externally derived substantive moral truths. Such epistemological arrogance, however, has no place in a democratic society, where even the very foundations of the society's form of government must themselves always remain open to public debate. Just as it is essential that the dichotomy between persuasion and espionage be recognized by the participants in the modern debate over the McCarthy era, it is equally important to point out that this insight does not necessarily imply that the repression of American communists was insupportable in all contexts. We have already seen that penalization of classic espionage activities is always appropriate, simply as a matter of societal self-preservation. But the same may be said of a number of other areas of so-called McCarthy-era repression which have long been the subject of disdain by liberal scholars. Two examples of McCarthy-era repression that automatically trigger negative reactions among many modern observers are the blacklists of entertainers with present or past communist connections and the dismissal of public schoolteachers with communist affiliations. Both have traditionally been condemned by many liberal critics as political persecution of the lowest form, because in both cases individuals are unambiguously penalized for nothing more than the

I2

Introduction

offensiveness of their political views. Closer analysis, however, reveals that these issues are by no means as simple as many assume. It is certainly true that the blacklists were not limited to those communist entertainers who had participated in espionage activities (if, indeed, there were any), 51 nor were they confined to those entertainers who had themselves advocated violent overthrow. In fact, there appears to have been little basis from which to infer any significant unlawful conduct on the part of the left wing entertainment community of the period. The basis for inclusion on the blacklists, rather, appears to have been nothing more than an unrepudiated affiliation with the Communist Party at some point in one's life. 52 Similarly, schoolteachers who lost their jobs were usually guilty of nothing more than their refusal to sign a loyalty oath. 5 3 Surely such a refusal did not automatically imply criminal behavior, in the form of either espionage or attempted overthrow. If, as I argue in this book, punishment of any American communists who did nothing more than openly advocate violent overthrow should have been deemed protected by the First Amendment, 54 it would seem to follow logically that punishment of American communists who did nothing more than join the party or refused to sign a loyalty oath is an even more unacceptable form of ideological repression. Thus, one might at first be tempted to accept the liberal criticism of the McCarthy-era blacklists. Viewed from this perspective, the response that the inconsistency between the values of communism and those of American society was so great as to justify repression appears reminiscent of the epistemological arrogance that the First Amendment universally condemns. As is the case on so many questions of free expression during the McCarthy era, however, the constitutional reality is far more complex than either the standard liberal or conservative positions on the issues might suggest. At the outset, it is necessary to distinguish the paradigmatic unlawful advocacy issue from the blacklist and public education contexts on several grounds. Initially, at least as a theoretical matter and perhaps as a practical matter, the blacklists were imposed by private individuals and organizations. 55 For the most part, it was private anticommunist organizations and individuals who made the choices both to shun those with communist affiliations and to urge others to do the same. This fact dramatically alters the underlying First Amendment dynamic. If one views the issues of free expression raised by the blacklists from the perspective not of the shunned individuals but of those doing the shunning, it becomes clear that the shunning represents the exercise of the private anticommunists' First Amendment right of nonassociation, which is itself constitutionally guaranteed. Although the First Amendment, properly construed, insulates American communists from governmental punish-

Logic, History, and the McCarthy Era

ment solely on the basis of a collective perception of the offensiveness of their ideology or the unfounded or manufactured fear of criminal behavior, that constitutional provision simultaneously guarantees other private individuals the option to disassociate themselves from those whose views they deem offensive. This, in short, describes the First Amendment right of nonassociation. 56 This First Amendment right, it should be noted, most certainly does not encompass a private right to discriminate on the basis of factors other than viewpoint or ideology-for example, race or gender. Rather, the right of nonassociation that is grounded in the constitutional guarantee of free expression is properly viewed as an outgrowth of the well-established First Amendment precept that one may not be compelled to utter views which he deems offensive. 57 So viewed, the right must logically be confined to shunning that is motivated by ideologically or viewpoint based considerations. When the blacklists of the McCarthy era are viewed through the lens of the First Amendment right of nonassociation, their constitutionally protected status becomes clear. Included among the anticommunists were individuals and organizations motivated by a variety of concerns, including strongly held differences in economic, political, or religious philosophy. 58 Under the anticommunist umbrella were political and economic conservatives, liberals, socialists, and Eastern European Catholics. 59 Their anticommunist views were often held with a fervor that matched or exceeded those held by the communists themselves. To have penalized them in some way for making the choice to disassociate themselves from those whose views they deemed morally offensive would have given rise to many of the very same constitutional harms caused by forced expression. If one accepts this assertion, it logically follows that penalizing others for either making these anticommunists aware of others' communist beliefs or affiliations or urging others to boycott those with communist beliefs or affiliations would violate the First Amendment. It hardly makes sense to allow government to punish private individuals for urging others to exercise their constitutionally protected rights. Thus, as offensive as many today find the blacklists of the 1950s to have been, viewing them from the perspective of the theory of free expression should dramatically alter our constitutional and political viewpoints on the question. The traditional view on the part of liberal commentators has been that the blacklists seriously threatened First Amendment rights by punishing individuals for their beliefs. 60 But although this position would be entirely accurate if we were discussing the possibility of most forms of governmental shunning on the basis of ideology, the exact opposite is true for private shunning. Although the First

Introduction Amendment insulates private individuals from governmental punishment for their beliefs, other private individuals possess a corresponding First Amendment right to choose not to deal with those individuals for no reason other than the repugnance of their ideological beliefs. Perhaps the point could be best understood by means of a thought experiment. In considering the moral or constitutional appropriateness of privately operated, ideologically based shunning, replace the word communist with the words Nazi or Ku Klux Klan member. Let us hypothesize that private individuals wish to organize a blacklist against all actors or athletes who have affiliations with these extreme right-wing groups. I am willing to wager that in that revised political context, the concept of blacklisting does not sound nearly as troublesome or offensive to many as it does when the process is applied to those possessing communist beliefs or affiliations.

If my prediction is accurate, then the widespread disdain of blacklists surely does not derive from a process-based concern about the interference with the constitutional rights of those who are being shunned for their beliefs. Presumably, as an abstract matter, Nazis or Ku Klux Klan members have the same right to constitutional protection against ideologically based shunning as did the communists of the 19 sos. Instead, the difference would be entirely one of substantive agreement or disagreement with the basis for the shunning. However, there existed a variety of very strong reasons to disdain communists and all they stood for during the McCarthy era. For example, many of the Eastern European Catholics who wished to shun them had witnessed the horrors of Stalin in their own countries and had seen what his forces had done to those who practiced their religion. Indeed, many knew individuals who had been shipped to Stalin's gulags. 61 In addition, political liberals of the day saw the American communists as a serious threat to their value system, which was premised on a belief in the supremacy of the democratic process and the value of individual rights-values that communism, by its nature, rejected. Moreover, these liberals rightly saw the American communists as a serious threat to the meaningful exercise of their own rights of association because of the danger of furtive communist infiltration into their ranks. It is for this reason that the constitution of the Americans for Democratic Action, an organization that had been formed by many of the leading liberals of the period, expressly excluded communists from membership. 62 Finally, from a First Amendment perspective, whatever one thinks of the merits of the strong philosophical disagreements that economic and political conservatives had with the communists is, for these purposes, completely beside the point. First

Logic, History, and the McCarthy Era

Amendment rights do not turn on what the enforcer thinks of the normative correctness of the views sought to be expressed or protected. To find the blacklists of the McCarthy era to fall within the First Amendment's protective reach does not necessarily imply political agreement with either the substantive political views underlying the blacklists or the very tactic of using them in the first place. There is much expressive activity with which one may disagree-in fact, which one finds deeply offensive-that the First Amendment protects. Indeed, that is the very point made by those who criticize governmental actions during the McCarthy era for punishing or suppressing the politically unpopular views held by American communists. But as already explained, the principle of epistemological humility may not be utilized selectively, lest the First Amendment degenerate into little more than a tool of those in political power. If it is accepted that the First Amendment ensures a right of nonassociation in the first place, 63 and that the right would encompass the choice of private individuals to shun Nazis or Ku Klux Klan members, then simple political disagreement with those who seek to shun American communists most assuredly cannot justify exclusion of their actions from the First Amendment's protective scope. One might argue that the reason for concern about the blacklists was not their invasion of American communists' rights of belief and expression but rather their inaccuracy. On more than one occasion, the lists mistakenly included names of entertainers who had never had any affiliation with the American Communist Party or any of its related organizations.64 However, for the most part, it seems that the blacklists were accurate in their descriptions of those with communist beliefs or affiliations. According to historian Ellen Schrecker, "[d]espite the widespread contention that McCarthy and his colleagues picked on innocent liberals, most of the men and women who lost their jobs or were otherwise victimized were not apolitical folks who had somehow gotten on the wrong mailing lists or signed the wrong petitions. Rather ... they had once been in or near the American Communist party. Whether or not they should have been victimized, they certainly were not misidentified. " 65 In any event, such privately inflicted harms are appropriately handled by the law of defamation, which authorizes those injured to be compensated for the loss as a result of falsehoods. 66 The mere possibility of mistakes cannot justify a total prohibition of the creation and distribution of even totally accurate lists. Possibly even more counterintuitive are the implications of First Amendment analysis for determining the appropriate way to view the impact of McCarthyism in the public schools. Today it is the view of many,

r6

Introduction

quite understandably, that the use of a teacher's refusal to sign a loyalty oath or current or past communist affiliation as an automatic basis for dismissal or refusal to hire constitutes a blatantly unconstitutional penalization for the holding of unpopular views, in derogation of the precept of epistemological humility that is so essential to a viable guarantee of free expression. Moreover, in the case of public schools, the private nonassociational interests relied upon to justify the blacklists are irrelevant as a conceivable justification because governmentally operated organs of course possess no such constitutionally protected right. Nevertheless, as is true in so many other areas of McCarthy-era repression, the proper constitutional calculus is considerably more complex than at first it might appear. To a certain extent, the public schools are appropriately seen as a means by which a society's fundamental sociopolitical-economic values are conveyed to impressionable young minds. At the very least, it would, as a practical matter, be virtually impossible to prevent the public educational system from being utilized to achieve that end because basic societal values are inherently intertwined with the substantive choices made in the shaping of the curriculum. For example, a school system's choice whether to portray Columbus as a racist genocidal murderer rather than a heroic explorer, or its choice to assign to students the works of Toni Morrison rather than Ernest Hemingway, will inevitably convey important elements of the community's value system. Something has to be taught in school, and the decisions of what those things are will be made by representatives of the community. Although the First Amendment implications of this value conveyance process are not entirely clear, 67 one thing that is clear is that a community has the largely unreviewable authority to establish the curriculum for the public schools. For the most part, the First Amendment right of free expression does not authorize the judiciary to review or otherwise interfere with a community's decision to choose courses or the content of those courses because the community has a legitimate interest in seeing that the information and opinion it has chosen to convey to its youth is, in fact, conveyed effectively. 68 But if the community may, consistent with the First Amendment, select the curricula for its courses, it logically follows that the community may also select those who will teach those courses. For example, if a public school system chooses to teach courses in economics and American history, and in those courses it wishes to convey the view that the capitalist system is the most fair, effective, and efficient form of political economy, that school system may decline to hire a teacher who refuses to teach the intended message. Although of course that teacher has the First Amendment right to hold contrary positions on the question, that First

Logic, History, and the McCarthy Era

I7

Amendment right does not extend to the authority to teach students one's own views as part of the public school system. This is true, even though the so-called right-privilege distinction, which posits that the First Amendment cannot be violated when government merely refuses to provide a benefit or a privilege, was quite properly discredited many years ago. 69 If a school system may properly refuse to assign a teacher to a class when that teacher refuses to convey the substantive material in the designated manner, it is not an undue extension of such reasoning to suggest that the school system may refuse to assign a teacher whose political views make it highly doubtful that she could convey the material as effectively as the school system would desire. For example, if a school district taught a course in race relations, it would not seem unreasonable for that district to refuse to assign members of the Ku Klux Klan to teach the course, regardless of the teacher's expressed willingness to teach the values of integration and racial harmony. District leaders could properly reason that it would be unduly burdensome for them constantly to oversee the teacher's performance, and that it is appropriate for them to refuse to assign a teacher whose predetermined sociopolitical views cast significant doubt on her effectiveness in the classroom. If one superimposes this view of the First Amendment and public education onto the McCarthy era, one is left with some conclusions that will no doubt seem surprising to many. Under this analysis, in selecting teachers to teach courses in American history, social studies, or economics, a school district of the r9 sos could appropriately take into account the fact that an applicant for a teaching position held communist beliefs, just as today a school district presumably could, consistent with the First Amendment, choose not to assign a member of the American Nazi Party to teach a course about race relations in the United States. In these situations, the community necessarily retains for itself the discretion to shape the substance of the curriculum as it deems fit, and to choose the teachers on the basis of its assessment of who will most effectively convey the substance of the course as the community wishes it to be conveyed. It does not follow from this conclusion, however, that school districts of the r9 sos could constitutionally refuse to hire those with communist beliefs or affiliations for the purpose of teaching any subject at all. Unless the school district could somehow establish a link between a teacher's political beliefs and the effective communication of the particular subject matter, its refusal to hire or retain the teacher would clearly constitute a First Amendment violation. For in such situations the refusal would amount to nothing more than the unadorned imposition of governmental punishment for the holding of a particular political belief. Such retributive behavior would undoubtedly constitute an unambiguous

18

Introduction

"abridgement" of the freedom of expression, in violation of the terms of and policies underlying the First Amendment. 70 The intersection between the constitutional right of free expression and the regulation of public education during the McCarthy era gives rise to a broader theoretical concern about how the First Amendment intersects with the processes of public elementary and secondary education in general. As already explained, it is difficult to see how, as either a practical or theoretical matter, the First Amendment right of free expression can be thought to impose significant restrictions on a community's decision as to how to structure the substance of its school curricula. How a community teaches subjects such as history, sociology, or physics for the most part must be beyond the judiciary's constitutional province. But this fact should not obscure the potentially significant constitutional dangers that inhere in the process of public education. Ironically, although there is little doubt that a democratic society cannot function effectively absent an effective system of public education, by its nature, the public educational system is an authoritarian operation. Agents of the government-either members of the board of education, school administrators, or teachers-decide exactly what it is that impressionable young citizens learn. To the extent a community uses its educational system as either a direct or indirect means of inculcating societal values in its youth, a troubling inconsistency between the values of free thought underlying the constitutional right of free expression and the functions performed by public education necessarily arises. This is what I refer to as the "democratic-educational paradox." 71 1t is therefore advisable to develop a First Amendment model to set out the constitutional limits on a community's ability to inculcate values in its students. That model, I believe, should draw a distinction between the incidental inculcation of values which inevitably flows from a community's exercise of its discretion to establish the substance of the curriculum on the one hand, and the direct and purposeful inculcation of values, either as a curricular or extracurricular matter, on the other. It is both inadvisable and impractical for the judiciary, as enforcers of the First Amendment, to police the former; it is, I believe, essential that the First Amendment be construed to prohibit the latter. The preceding examination of all the ways in which the repression of the McCarthy era and the First Amendment right of free expression intersect establishes two key points, both of which provide the basis for all of the chapters that follow. One of these points concerns the proper way to understand the history of the period; the other focuses on the broader implications of this historical-constitutional analysis for the future of First Amendment theory. First, it should by now be clear that, when

Logic, History, and the McCarthy Era

viewed through the lens of free speech theory, the repression of the McCarthy era is morally, politically, and constitutionally far more complex than historians on either side of the current historical debate have assumed. Thus, it is impossible to characterize the appropriate view of this troubled period in American history as categorically either liberal, con· servative, or anticommunist. Each of those historical viewpoints, when relied upon to provide the exclusive modern perspective, grossly oversimplifies the complexities that inhere in the deep moral and political structural problems growing out of the era. Second, by viewing the McCarthy era through the lens of First Amendment theory, we are able to draw important inferences about the scope and application of that theory in a variety of modern doctrinal contexts. It is this symbiotic interaction between the past and the future, between constitutional theory and American history, and between constitutional law and American politics that provides the foundation for the analysis contained in this book. Essentially, the purpose of this book is to determine what First Amendment theory tells us about the McCarthy era, and vice versa. 72 The book does not purport to be an encyclopedic examination of either the McCarthy era itself or the First Amendment's relationship to it. Rather, it is intended to provide a new perspective on the theoretical and historical understanding of that interaction. It does so first by exploring certain basic structural aspects of the First Amendment's intersection with the McCarthy era, and then by selecting three important areas of First Amendment theory and doctrine in which that intersection is at the most intense level. In the next chapter, I establish the historical framework for the constitutional analysis that follows. The chapter explores the broad contours of the McCarthy era, including a description of the different forms of repression imposed during the era. The chapter will also explore the relatively limited role that Senator McCarthy himself actually played in the era that bears his name.7 3 Although it is inevitable that the explication of this framework will deal to a certain extent with surrounding constitutional issues, I have reserved several of those issues-specifically, constitutional protection of unlawful advocacy, the intersection between the Hollywood blacklist and the House Committee on Un-American Activities on the one hand and the First Amendment right of nonassociation on the other, and the First Amendment implications of McCarthyism and the public schools-for detailed discussion in subsequent chapters. These three areas have been selected for special treatment because they have certain characteristics that distinguish them from other areas of First Amendment theory and doctrine affected by the McCarthy era. First, I believe it is fair to say that they are the doctrinal areas most heavily af-

20

Introduction

fected by the repressive policies of the McCarthy era. Second, they are probably the First Amendment doctrines where careful synthesis of history and constitutional theory gives rise to the most counterintuitive conclusions. Chapter 3 begins the examination of the constitutional-historical intersection that provides the book's core. It considers the extent to which the repression of the McCarthy era constitutes an illustration of what free speech theorists have on occasion referred to as a "pathological" period in American history, and the extent to which interpretation of the First Amendment should be restructured in order to deal specifically with such periods of political stress. The chapter will also consider whether that interpretive model effectively implements the values sought to be protected by the constitutional right of free expression. 74 It has been suggested that the scope of the First Amendment guarantee of free expression should be shaped exclusively to respond to the periods in American history in which government presents a far greater threat to the interests of free speech that it does during more normal periods, and the McCarthy era is always cited as one of the relatively few pathologically driven times in the nation's history.75 In Chapter 3, I respond to the pathological theorists by arguing that it is much wiser to fashion the First Amendment's scope without any special regard for or concern with these so-called pathological periods-if, indeed, such confined episodes can even be carved from the broader flow of American political history in the first place. 76 Chapter 4 tackles the difficult issue of the degree to which the First Amendment should be construed to protect the advocacy of unlawful conduct. In doing so, it explores the implications for the unlawful advocacy issue of the revelations of the Comintern and Venona documents.7 7 I begin the analysis with heavy criticism of the Supreme Court's infamous decision in Dennis v. United States, 78 where the Court upheld the convictions of the leaders of the American Communist Party against First Amendment attack. I then consider the implications of the revelations of the Comintern and Venona documents for that First Amendment critique, concluding that those revelations have absolutely no relevance to the serious First Amendment problems that plague the Court's various opinions in Dennis.79 In critiquing Dennis and distinguishing between the expressive activity suppressed in that case with the communications revealed by the Comintern and Venona projects, the analysis argues that current theoretical and doctrinal approaches to the protection of unlawful advocacy are inadequate and suggests an entirely new model for resolving these troubling questions. 80 Chapter 5 explores the triangular intersection among the Hollywood blacklists of the McCarthy era, the House On-American Activities Com-

Logic, History, and the McCarthy Era

21

mittee, and the First Amendment right of nonassociation. It concludes that whatever one thinks of the political or moral justifications for the blacklists, to the extent they were privately created and operated, they represented a constitutionally protected exercise of the First Amendment right of nonassociation. There were many anticommunists who had legitimate reasons for their hatred of communism, and their decision to disassociate themselves from any theatrical activity in which Communist Party members or sympathizers were involved was a legitimate exercise of their nonassociational rights. I then consider the implications of this conclusion for the modern structure of the right of nonassociation. In doing so, I shape an entirely new model of the nonassociational right that is grounded in constitutional principles far different from those relied on by the modern-day Supreme Court. 81 The new model seeks to rationalize the constitutional right of nonassociation, not exclusively as an auxiliary means of fostering the constitutional right of association, but rather as a logical implication of the widely recognized First Amendment right not to speak. When revised in this manner, the nonassociational right's underlying theory gives rise to a categorization process that separates out noncognitively based discrimination (which is not protected by the First Amendment) from shunning that grows exclusively out of the offensiveness of the shunned individual's cognitive positions and views, which should be found to come under the First Amendment's protective umbrella. In Chapter 6, I turn to the impact of the McCarthy era's repression on the field of public education. There I suggest that the First Amendment should be deemed relevant to governmental control of curricular and extracurricular activities in the public schools, because the values inculcation that is inevitably brought about in young, impressionable minds threatens the values of free thought that provide the foundation for-indeed, the sine qua non of-the First Amendment right of free expression. 82 To a certain extent, as a practical matter, government will inevitably possess authority to inculcate values, if only indirectly through its choices of textbooks and its shaping of the substance of each course. However, anything beyond what is minimally inherent in the shaping of the content of the curriculum should be deemed beyond governmental control. Thus, no agent of government (school board, principal, or teacher) should constitutionally be authorized to inculcate values directly through the conduct of assemblies or extracurricular activities or through the teaching of courses whose entire purpose is to convey a particular set of values. But because communities may choose to shape the content of particular courses virtually any way they wish free from constraint by the First Amendment right of free expression, it should not have been

22

Introduction

deemed unconstitutional for state or local governments to refuse to hire or retain teachers who were not likely to teach the subjects in the prescribed manner. Thus, school systems could constitutionally refuse to hire communists to teach social studies when the community had chosen to portray American capitalism in a positive light. However, to refuse to hire communists to teach math or physics would amount to nothing more than the governmental punishment of teachers for their sociopolitical and economic views-a clearly unconstitutional result. 83 Although I hope in these pages to present a fusion of historical and constitutional analysis that has never before been attempted, it is important to emphasize what this book is not. First, I should make clear that I make no claim to being a historian. I purport to introduce no new historical data to the debate over the McCarthy era. Over the period of the last ten years or so, historians-particularly Haynes and Klehr-have done an excellent job of unearthing and analyzing valuable new information about that period of American history. Thus, although portions of this book deal directly with the history of the period, those discussions should be viewed as primarily an attempt to provide a historical foundation for the insights of constitutional theory that are to follow. This does not mean that my analysis is intended to have no impact on the historical debate. Despite the book's primary concern with the constitutional implications of the McCarthy era, it is also intended to influence the historical assessment of that period. I hope and expect that adding the perspective of free speech theory to the historical analysis will dramatically alter the moral, political, and constitutional perceptions of that turbulent time in American history. But as my descriptions of subsequent chapters clearly demonstrate, this book is about considerably more than how one should perceive the constitutional and political implications of the McCarthy era. It is also about how the First Amendment should be shaped in modern times. Each of the analyses of a particular aspect of the First Amendment's relevance to the McCarthy era is simultaneously intended to provide new (and often controversial) insights into how the First Amendment should be shaped today. It is the intersection of historical analysis and constitutional theory in this manner that I hope will be this book's lasting contribution.

CHAPTER TWO

The Legal Topography of the McCarthy Era

SENATOR MCCARTHY AND THE MCCARTHY ERA

The McCarthy era got its name because of the notoriety that the controversial senator from Wisconsin both sought and received during his turbulent service in the Senate, beginning with his election in 1946 and culminating in his censure by the Senate in 19 54· The term McCarthyism had its genesis in a political cartoon by Washington Post cartoonist Herblock, which appeared in print on March 29, 1950. The cartoon showed Republican leaders in Congress pushing a reluctant elephant onto a platform balanced on an unstable stack of buckets filled with tar and labeled "McCarthyism." Its caption stated: "You mean I'm supposed to stand on that?" 1 According to journalist and McCarthy critic Richard Rovere, although "[t]he word was an oath at first-a pseudonym for the hatefulness of the baseless defamation or mudslinging .... [l]ater it became, for some, an affirmation. " 2 Indeed, McCarthy himself would eventually come to embrace the term, even publishing a book of speeches entitled McCarthyism: The Fight for America. 3 On February 9, 1950, McCarthy sprang onto the anticommunist scene with a speech in Wheeling, West Virginia, before the Ohio County Women's Republican Club, as part of a Lincoln Day celebration. The speech had not been expected to garner much publicity, and, according to one of his biographers, "[t]here was nothing very original about the brief address .... [I]t bristled with standard right-wing rhetoric about traitors in high places. " 4 In the middle of his speech, he stated: "While I cannot take the time to name all the men in the State Department who have been named as members of the Communist Party and members of a spy ring, I have here in my hand a list of 20 5 that were known to the Secretary of State as being members of the Communist Party and who nevertheless are still working and shaping the policy of the State Department." 5 Me-

The Legal Topography of the McCarthy Era

Carthy did not have such a list at the time. 6 Yet a lie of this magnitude was quite consistent with his prior pattern of behavior. 7 The Wheeling speech gave rise to enormous controversy. Although later there was some confusion as to the actual number McCarthy had used in the speech, McCarthy's accusations "were too concrete and specific to be ignored. " 8 In important ways, at least at the start, McCarthy was not typical of much of the anticommunist movement, which firmly believed in the immorality and evil of communism. He was, as commentators have described him, "the political speculator who found his gusher." 9 According to noted McCarthy-era historian Harvey Klehr, before "discovering" communism, McCarthy "was best known for attempting to end sugar rationing to benefit the Pepsi-Cola company and for a bizarre crusade to prove that Nazi SS men convicted of murdering American POWs at Malmody had been unjustly convicted. McCarthy had little knowledge of communism or interest in subversion before deciding that he needed a defining issue for his upcoming re-election bid." 10 At some point later in the process, McCarthy probably believed what he was saying, 11 but in two ways, his form of anticommunism is appropriately characterized as manipulative. 12 First, unlike many nonpolitical anticommunists, McCarthy (and a number of his Republican colleagues in the Senate) cynically utilized anticommunism in large part as a means of advancing their careers. Second, as part of this career-driven manipulation, he often attacked individuals, even though he had absolutely no basis for believing they had communist connections. 13 Most prominent among these were General George Marshall and Secretary of State Dean Acheson, government officials who even respected anticommunist scholars have readily acknowledged were free of communist ties. 14 However, many far less prominent individuals were also unjustly accused by McCarthy. 15 For example, at one point McCarthy told reporters that he had just given Senate investigators "the name of the man-connected with the state department-whom I consider the top Russian espionage agent in this country," indicating that he was alleged spy Alger Hiss's espionage boss. He later told the senators that Owen Lattimore, a sinologist connected to the State Department, was "the top Russian spy." But having recklessly made the charge, McCarthy and his staff sought-after the fact-to "frantically gather information" about Lattimore. 16 According to McCarthy's leading biographer, "[t]he obvious flimsiness and irresponsibility of McCarthy's charges [about Lattimore] irritated many thoughtful G.O.P.leaders." 17 The most important point to be emphasized about Senator McCarthy today is that, contrary to the views of some, 18 nothing in the dramatic revelations of the 1990s concerning espionage activity by American com-

The Legal Topography of the McCarthy Era

25

munists in any way historically vindicates either who he was or what he stood for. This is so even if one concludes that these revelations do, in fact, vindicate the statements or actions of certain segments of the anticommunist movement. Whether or not other anticommunists openly opposed McCarthy or his tactics (and some, particularly the liberal anticommunists, quite clearly did so), 19 it is improper to automatically identify McCarthy with the entire anticommunist movement. 20 Indeed, one of the most powerful implications of the modern revelations of American communist espionage is McCarthy's recklessness. The very historians most responsible for those modern revelations, John Earl Haynes and Harvey Klehr, argue, "To say that there was a significant issue of Soviet espionage in post-World War II America is not to vindicate McCarthy. The deciphered Venona messages, for example, document the CPUSA's integral role in the Soviet Union's massive espionage against the United States but offer no support for many of McCarthy's wild and reckless charges." 2 1 Even though the New York Times' obituary of McCarthy stated that "from 1950-I954 he wielded more power than any other senator,'' 22 and according to a respected historian, McCarthy's tenure in the Senate during that period "witnessed the most extreme manifestations of the anticommunist crusade," 23 it appears clear that the era that bears his name both predated and postdated McCarthy himself. 24 In the words of onerecent commentator, "[p]ostwar McCarthyism existed long before Joe came on the scene in 1950. Joe was what Lenin called a 'tailist,' latching on to a spontaneous grassroots movement, born out of the dimly understood reality of America's postwar global role." 25 McCarthy was only one actor among many in the complex tragedy that was the McCarthy era. In addition, at one point or another, the era implicated all three branches of the federal government, state and local governments, and private institutions and individuals. It also involved a variety of suppressive mechanisms, some direct and others indirect. Finally, the era of course involved the American communists and their sympathizers. They may well have been victims, but as the Comintern and Venona documents quite clearly show, not always innocent ones. It is largely because McCarthy's role in the era that bears his name was relatively limited that he does not provide the focus of this book. 26 In this chapter, I lay the political and legal groundwork for much of the exploration of the intersection of American history and the theory of free expression that is to follow in subsequent chapters. Here I briefly describe the legal framework established by the anticommunist network to fight communism and communists.27 In so doing, I categorize this anticommunist regulatory activity in terms of both actors and mechanisms. As I

26

The Legal Topography of the McCarthy Era

will demonstrate, this categorization process has important implications for the constitutionality of all aspects of the anticommunist regulatory framework. 28

CATEGORIZING THE STRUCTURE OF REPRESSION

The McCarthy Era's Repressive Framework

The repression imposed during the McCarthy era was anything but monolithic. It was imposed by governments at every level, as well as by private individuals and institutions. Moreover, it was implemented through a variety of devices that were designed to accomplish different ends and had different impacts on the subjects of the regulation. This complex and far-reaching network of repressive measures taken against American communists and their sympathizers may be best understood by categorizing its elements in terms of two variables: (I) the identity of the party imposing the repressive measure, and (2) the nature of the repressive measure implemented. The identity element, in turn, may be divided into two basic subcategories, governmental and private. Although conceivably these subcategories could themselves be further subdivided by distinguishing between federal and state or local governments, it is probably sufficient to confine the analysis to a broad-based governmental-private dichotomy. The point is that repressive measures were taken both by governmental and private institutions, and the constitutional implications may differ significantly, depending on which of the two is involved. During the McCarthy era, both public and private actors utilized a variety of repressive weapons against communists, those who had been communists but refused to inform on their former colleagues, and those who associated with communists. At the governmental level, basically three such weapons were used: (I) direct coercion, (2) benefit or subsidy deprivation, and (3) exposure. 29 Like the direct coercion category, the benefit deprivation category involved the imposition of a burden on the subjects of the repression. However, the two differed in the sense that direct coercion was confined to the direct imposition of criminal penalties, such as fines or imprisonment, for specified activities. Benefit deprivation, on the other hand, involved either the revocation or prevention of a governmentally granted entitlement-for example, the loss of a teaching job, a position as a union officer, a governmentally provided benefit, or a government position.

The Legal Topography of the McCarthy Era

27

Benefit Deprivations

In light of the state of First Amendment jurisprudence during the McCarthy era, the distinction between direct imposition of criminal penalties on the one hand and deprivation of benefits or subsidies on the other was extremely important. Under the so-called right-privilege distinction that pervaded constitutional law during the 19 5os, an individual was thought not to possess a constitutional right to such governmentally created benefits. 30 The doctrine is most identified with a famous statement of then-Judge Oliver Wendell Holmes Jr. of the Massachusetts Supreme Judicial Court: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. " 31 The logical basis supporting the right-privilege distinction, then, was that the greater governmental power to deny the subsidy logically subsumed the lesser power to grant the subsidy on condition of the waiver of a constitutional right. 32 Thus, during most of the McCarthy era, a law that penalized communists by revoking a governmentally granted benefit would give rise to less serious First Amendment difficulties than would a law making them subject to a criminal penalty. In more recent years, pursuant to the "unconstitutional conditions" doctrine, the essential premises of the right-privilege distinction have been largely abandoned, although the contours of the modern doctrine remain unclear at the frontier. That doctrine provides that government may not condition the granting or denial of a benefit on the waiver of a constitutional right. 33 For example, in its 1991 decision in Rust v. Sullivan, 34 the Supreme Court upheld Health and Human Services Department regulations regarding federal funding of family-planning services promulgated pursuant to Title X of the Public Health Services Act. The regulations prohibited a clinic that receives funds under the act from providing "counseling concerning the use of abortion as a method of family planning or [from] provid[ing] referral for abortion as a method of family planning" and from "promoting abortion as a method of family planning."35 The Court rejected an argument grounded in the unconstitutional conditions doctrine because the government was not "denying a benefit to anyone, but [was] instead simply insisting that public funds be spent for the purposes which they were authorized. " 36 The Court thus drew a distinction between government providing a subsidy and simultaneously directing how that subsidy will be used (behavior that does not violate the First Amendment), and government conditioning the grant of a subsidy on the recipient's refraining from engaging in unrelated expressive activity (behavior which does violate the First Amendment).

The Legal Topography of the McCarthy Era

This distinction will not always be an easy one to draw. Today, however, at the very least, it is certain that revocation of a governmentally granted benefit due to the recipient's exercise of her expressive rights when those rights have been exercised in contexts unrelated to the use of the benefit implicates the full force of First Amendment protection. Such a principle makes perfect sense from the perspective of First Amendment theory. The point of reference, in light of the amendment's text, is whether the freedom of speech has been "abridge[d]." Government need not impose a direct penalty in order to "abridge" that right. Rather, any governmental action that penalizes or deters the exercise of free expression gives rise to at least a prima facie conflict with the terms of the amendment. Viewed from this perspective, then, it is irrelevant that the individual had no independent constitutional right to the benefit in question. The issue, instead, is whether the contingent denial of that benefit because of the recipient's exercise of his First Amendment right penalizes or deters the exercise of the right of free expression in an unconstitutional manner. The benefit-deprivation category itself may properly be subdivided into two subcategories for purposes of First Amendment analysis: instrumental and retributive deprivations. Retributive deprivations were those that were nothing more than an effort to punish people who held unpopular political views. Instrumental deprivations, in contrast, were those that were legitimately designed to achieve a social end that was not directly tied to the suppression of the recipient's First Amendment right. The point of the dichotomy is not necessarily to suggest a rigid distinction between constitutional and unconstitutional deprivations. To be sure, retributive deprivations should clearly have been found unconstitutional. However, not all instrumentally grounded deprivations were properly deemed to satisfy the First Amendment. Thus, recognition of the dichotomy appropriately serves a winnowing function: subsidies categorized under the retributive heading are automatically deemed unconstitutional, whereas those that fall under the instrumental heading require further constitutional analysis. In this way, recognition of this conceptual dichotomy can greatly assist in measuring the constitutionality of McCarthy-era benefit deprivations by government. A potential problem with implementation of the instrumental-retributive dichotomy as a measure of the constitutionality of benefit deprivations during the McCarthy era is the simple fact that the two subcategories were by no means mutually exclusive. Government could conceivably have been acting simultaneously out of both motivations. Thus, in certain situations government could reasonably suggest that its deprivation of benefits to communists was grounded in the desire to

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29

avoid concrete, proximate harm or disruption while at the same time it was also motivated by the desire to punish those asserting politically unpopular views. The best way to avoid this problem is to ask whether government could have properly acted solely out of the instrumental goal of protecting national security or legitimately avoiding or the disruption of government programs and policies (when such policies were unrelated to the simple desire to punish communists). From this perspective, government's actual purpose would matter little; all that would matter would be whether government could justify its deprivations purely on legitimate instrumental grounds. The instrumental subcategory is in many ways analogous to government's ability to direct the use of subsidies for predetermined policy goals, recognized by the Supreme Court in its 1991 decision in Rust. In certain situations, government denied benefits to communists because to grant such benefits would have either directly undermined government's ability to shape and implement constitutionally valid policies or threatc ened compelling national interests. From a constitutional perspective, the least controversial example of instrumental deprivation was government's refusal to employ communists in governmental policy-making positions. The denial to communists of positions of policy-making authority in government should be deemed to raise no serious First Amendment problem. It would be difficult to question any government's ability to exclude from such positions those whose views were deemed unacceptable by that government. After all, government is elected to implement a normatively based policy agenda. To require government to include within its inner circle those who hold contrary views would, quite naturally, undermine government's ability to implement those policies. Government's exclusion of communists from pure policy-making positions, then, was no more unconstitutional than a Republican administration's exclusion of Democrats from similar positions would have been. A somewhat more controversial illustration of the instrumental subcategory was legislation effectively preventing communists from holding positions of authority in labor unionsY In 1947, Congress enacted the Taft-Hartley amendments to the National Labor Relations Act, passed over President Truman's veto. As a result, Section 9(h) of that law was amended to deny the protections of the act to a union unless each of the union's officers filed an affidavit with the National Labor Relations Board stating "that he [was] not a member of the Communist Party or affiliated with such party, and that he [did] not believe in, and [was] not a member of or support[er] [of] any organization that believes in or teaches, the overthrow of the United States government by force." 38 In American Communications Association v. Douds, 39 the Supreme Court upheld the

The Legal Topography of the McCarthy Era

provision against First Amendment attack. 40 Although the Court declined to ground its decision exclusively in the right-privilege distinction, 41 it nevertheless upheld the provision on the basis of "the right of the public to be protected from evils of conduct, even though First Amendment rights of persons or groups are thereby in some manner infringed. " 42 At the time of the Taft-Hartley Act's passage, some expressed concern that the affidavit requirement would not have much of an impact, because "Communist labor leaders could presumably retain power by ignoring the law and forgoing the services of the NLRB. " 43 Nevertheless, it turned out that the act actually did "quite a lot of damage." 44 This result should not have been surprising because, regardless of the technicalities of the right-privilege distinction, the loss of National Labor Relations Act protections would inevitably have caused a severe blow to unions. The NLRB would not process unfair labor practice complaints by unions whose officers failed to provide the required affidavits. Moreover, these unions were not allowed to participate in representation elections, nor could they be certified as bargaining agents. 45 Although the decision in Douds is certainly controversial, at least a plausible case can be made to support its conclusion. This is so, even if one rejects a right-privilege rationale. In the context of labor unions, government could at least plausibly maintain that to permit communists to hold positions of authority could seriously threaten national security, and therefore imposition of even a more direct penalty on unions who had communist officers would be constitutional. Indeed, in 19 59 Congress abandoned the benefit-deprivation strategy by supplanting section 9(h) with section 504, which made it a crime for a Communist Party member to be an officer of a labor union, although that provision was subsequently held unconstitutional on different grounds. 46 The national security argument used to justify these strict limitations on the role of communists in labor unions pointed to the possibility of communist sabotage through the fomenting of widespread labor strife, a common communist technique in other parts of the worldY Of particular concern were unions in defense-related industries. In the words of one historian, "once the Cold War escalated, it became possible to offer a national-security rationale for taking action in almost every industry that harbored a communist-controlled union. " 48 In Douds, the Court reasoned that one of the primary purposes of the act was to remove the danger of "the so-called 'political strike."' It noted that "[s]ubstantial amounts of evidence were presented to various committees of Congress ... that Communist leaders of labor unions had in the past and would continue in the future to subordinate legitimate trade union objectives to obstructive strikes when dictated by Party leaders, of-

The Legal Topography of the McCarthy Era ten in support of the policies of a foreign government. " 49 In particular, the Court pointed to the infamous strike in 1941 at the Milwaukee plant of the Allis-Chalmers Manufacturing Company, which at the time "was producing vital materials for the national defense program." According to the majority opinion of Chief Justice Vinson, "Congress heard testimony that the strike had been called solely in obedience to Party orders for the purpose of starting the 'snowballing of strikes' in defense plants." 50 Doubt has been raised about the accuracy of the allegations made to Congress concerning the 1941 Allis-Chalmers strike. According to Schrecker, "[t]he company had orchestrated the entire case. In collaboration with Louis Budenz [the former Daily Worker editor who had been the company's primary witness], two congressional committees, the Justice Department, the FBI, the press, the Milwaukee police department, and a motley assortment of hired investigators and CIO [Congress of Industrial Organizations] dissidents, it had transformed its own labor troubles into a symbol of the communist threat to the national economy." 51 As a practical matter, however, it would obviously have been extremely difficult for the Court to have unearthed such a conspiracy, if indeed it had ever existed. Moreover, even Schrecker concedes that by the time of Taft-Hartley's passage "the prospect of a communist-led political strike against the American defense industry was not just a theoretical possibility; such strikes had already occurred." 52 Thus, whatever one ultimately concludes about the historical merits of the arguments, at least as a purely theoretical matter, it is appropriate to view governmental regulation of communists in positions of union leadership as a form of instrumental benefit deprivation. Another form of instrumental benefit deprivation during the McCarthy era was the exclusion of communists by state and local governments from certain positions as teachers in public schools. Such denials are appropriately classified as benefit deprivations, because no one has an independent constitutional right to a position as a public school teacher. Whether they are properly classified as instrumental rather than retributive, however, is a more complex question. In certain situations, denials of teaching positions to communists are properly classified as instrumental. State and local governments could reasonably conclude that were communists permitted to teach such subjects as social studies or economics, it was conceivable that they could distort those subjects and thereby disrupt the community's ability to inculcate the societal values in its youth. It should once again be emphasized that the classification of a subsidy as instrumental, rather than retributive, does not automatically

32

The Legal Topography of the McCarthy Era

imply its constitutionality.53 But whatever one thinks of the wisdom, morality, or constitutionality of such a strategy, there can be little question that such exclusions were grounded in a governmental desire to achieve or avoid a particular social result. Not all exclusions of teachers with communist affiliations, however, are appropriately classified as instrumental. Teachers who taught subjects other than social studies, history, or economics were, as a practical matter, not in a position to undermine the community's ability to inculcate values in students. Neither physics nor mathematics, for example, changes when taught by communists. Preventing communists from teaching such subjects, then, could be viewed only as a form of retributive deprivation-a naked attempt to punish those who held unpopular political views. It might be responded that even when communists teach such subjects as math or science, their very presence in the classroom would signal to students the legitimacy of communism as a political and economic philosophy. But such an argument ultimately amounts to little more than an indirect restatement of the inherently unconstitutional retributive rationale. To suggest that government may send a message of political or moral disapproval by penalizing those who hold unpopular political viewpoints is to suggest that government may punish the holding of unpopular views-a clearly unconstitutional result. And because government lacks constitutional power to deny all nonpolicymaking government jobs on grounds of political viewpoint, there is no rational basis on which to believe that the government's hiring of an individual automatically implies approval of that individual's political views. In the case of retributive deprivations during the McCarthy era, government denied benefits or subsidies to communists for reasons other than fear that provision of those subsidies would have enabled communists to undermine the shaping and implementation of governmental policies or threaten national security (as was at least arguably the case for exclusion of communists from governmental policy-making positions, union leadership, and, in certain contexts, the public schools). They did so, rather, simply as a means of punishing those who held ideologically offensive views. When placed in the context of the post-Rust v. Sullivan version of the unconstitutional conditions doctrine, retributive deprivations are appropriately viewed as denials of subsidies because of expressive or associational activity that is unrelated to the purposes designed to be served by the subsidy. A classic illustration of such an unconstitutional condition would be a directive that welfare benefits are to be given only to those who do not criticize government policies. In such a case, the welfare benefits have nothing to do with the accompanying conditional restriction on expression. Under the Court's analysis in Rust, such condi-

The Legal Topography of the McCarthy Era

33

tions are constitutionally distinct from grants by government to family planning clinics designed to implement its antiabortion policies. If viewed from the modern perspective of the unconstitutional conditions doctrine, then, retributive deprivations during the McCarthy era should categorically be deemed unconstitutional. One area that arguably bridged the two forms of benefit deprivation involved government loyalty-security programs. The Hatch Act, passed in I940, had prohibited subversives from working in the federal government. However, it was not until March I947, when President Truman issued Executive Order 983 5 creating a comprehensive "security vetting" program for United States government employees, that the problem of subversives in government took on real significance.5 4 In the words of one scholar, "[t]his was a program of vast proportions, involving not only the [more than two million] employees in place, but also the half-million new employees a year who were brought in because of turnover." 55 Pursuant to the order, each governmental department and agency had a loyalty board. A twenty-three-person appeals board was established, to sit in panels of three. 56 Workers found to be disloyal were to be dismissed. Pursuant to the order, "membership in, affiliation with, or sympathetic association with" any group designated by the attorney general as "totalitarian, fascist, communist, or subversive" or dedicated to "force or violence" could be considered a sign of disloyalty. 57 "Truman and his advisers had never seriously worried about disloyal federal workers," Schrecker asserts, leading her to conclude that "it was obvious that politics, not security, drove the nation's loyalty programs. " 58 Purely as a theoretical matter, loyalty security programs possess elements of both instrumental and retributive deprivations. On the one hand, loyalty checks for government workers who are neither in policymaking jobs nor security-sensitive positions are difficult to characterize as instrumental. Allowing communists to hold such nonsensitive positions would appear to threaten neither national security nor governmental ability to shape and implement its political agenda. On the other hand, one might argue that any governmental employee intent on destruction of our governmental system could cause problems through resort to a variety of forms of sabotage. Such a concern, however, appears to represent a significant stretch. First, it is by no means clear that all communists were intent on destruction of the nation's governmental system on anything other than the most abstract level. Second, as long as the employees were not in security-sensitive positions, it is highly likely that most efforts at sabotage through employment could be discovered and dealt with long before any serious harm was suffered. To the extent that the loyalty checks of the McCarthy era were truly motivated by instrumental con-

34

The Legal Topography of the McCarthy Era

cerns, then, the government's asserted interest should have been found to be easily outweighed by the serious constitutional harm brought about by what was largely a viewpoint-based deprivation. Whatever one concludes about these theoretical abstractions, the political realities of the means by which the program was implemented largely moot the debate. Loyalty board inquiries appear to have focused not at all on the extent to which the individual employee might realistically have seriously undermined governmental operations, but rather largely, if not exclusively, on the ideologies of the employees. Questions of board members, according to one commentator, "bordered on Big Brotherism. " 59 For example, one employee was asked whether she had ever written a letter to the Red Cross about the segregation of blood, and what her personal position was on the issue. 60 Moreover, although loyalty board hearings purported to adhere to quasi-judicial procedures, the program's reliance on anonymous informers inescapably contravened basic requirements of due process. 61 The lower federal courts rejected due process challenges to the loyalty security programs because, under the now outdated right-privilege distinction, losing a job did not constitute the loss of liberty or property, the necessary triggers for the invocation of the constitutional guarantee of fair procedure. 62 Ultimately, the loyalty security program's fundamental constitutional failing was its use of a sledgehammer where a scalpel was required. Put in terms of First Amendment jurisprudence, the program was grossly and unconstitutionally overbroad, meaning in this context that it went considerably farther than was necessary to prevent the compelling harm required to justify the penalization of activity protected by the First Amendment. 63 After the McCarthy era ended, the Supreme Court used the First Amendment overbreadth doctrine as an effective means of restricting government's ability to punish expressive activities through denial of employment. In United States v. Robel, 64 the Court held unconstitutional a provision of the Subversive Activities Control Act of 19 50 that imposed criminal penalties on a member of a so-called communist-action organization who "engage[d] in any employment in any defense facility." 65 Although the government's asserted rationale of "reduc[ing] the threat of sabotage and espionage in the Nation's defense plants" 66 was "not insubstantial," the Court reasoned that "[t]he statute quite literally establishes guilt by association alone, without any need to establish that an individual's association poses the threat feared by the Government in proscribing it. " 67 The statute, the Court stated, "casts its net across a broad range of associational activities, indiscriminately trapping membership which can be constitutionally punished and membership which cannot be so proscribed," because "[i]t is also made irrelevant to the

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35

statute's operation that an individual may be a passive or inactive member of the organization's unlawful aims ... [or that he] may occupy a nonsensitive position in a defense facility. " 68 One may reasonably question the Robel Court's failure to speculate on what less invasive alternatives government might have used to separate out the truly dangerous situations from those that amounted to little more than thinly disguised retributive deprivations. However, at least to the extent that the Robel Court's overbreadth analysis invalidated government's failure to distinguish sensitive from nonsensitive defense positions, it accurately reflected the fundamentally undisciplined nature of the government's loyalty security program. The only problem was that the decision came twenty years later than it should have. Directly Coercive Regulation

On one level, the McCarthy-era government's use of benefit deprivations and directly coercive measures tended to overlap. Benefit deprivations at some point could spill over into the imposition of criminal penalties where individuals accepted the benefits under false pretenses-for example, individuals who falsely swore loyalty oaths as a precondition of receiving a job or a subsidy. Moreover, although the difference between the two forms of repression was significant during the McCarthy era because of the now largely discredited right-privilege distinction, abandonment of that distinction has quite naturally blurred the dichotomy between the two forms of repression. Nevertheless, at least as a constitutional matter the two may still differ in important ways. First, although deprivations of benefits surely trigger First Amendment inquiry, the harshness of criminal penalties, particularly imprisonment, may well justify a closer level of scrutiny. Second, at least in such situations as government employment, government in many cases may possess stronger justifications for deprivation. In any event, on conceptual and practical levels, the two forms of repression differed significantly during the era. The primary criminal statute used against communist leaders during the McCarthy era was enacted before the era began. The Smith Act, passed in 1940, provided that a person who "knowingly or willfully advocates ... the duty, necessity, desirability, or propriety of overthrowing ... the government of the United States ... by force or violence; or ... organizes or helps ... to organize any ... group ... of persons who teach, advocate, or encourage the overthrow ... of any [government in the United States] by force or violence; or becomes or is a member of, or affiliates with, any such group, ... knowing the purposes

The Legal Topography of the McCarthy Era

thereof-[s]hall be fined ... or imprisoned not more than twenty years, or both." 69 Although the Smith Act was of enormous importance during the McCarthy era, it was supplemented by a variety of post-World War II legislation. In 19 so, Congress passed-over President Truman's veto-the Internal Security Act, also known as the McCarran Act. 70 The act's central provision was a registration requirement applicable to "communistfront" and "communist-action" organizations, as defined by the act. These organizations "were subject to serious penalties if they failed to register. " 71 The act also established the Subversive Activities Control Board, whose task was to determine which organizations were subject to the act's requirements. The act was justified by a preamble that "contain[ed] the legislative conclusion that world communism had as its one purpose the establishment of a totalitarian dictatorship in America to be brought about by treachery, infiltration, sabotage and terrorism. American communists were stated to have transferred their allegiance to a foreign power. " 72 Another provision of the act which, according to historian David Caute, "emerged out of a liberal maneuver to divert the cannibal's appetite by promising him a feast of blood at some later date," 73 authorized creation of detention camps in times of national emergency, invasion or insurrection. Originally intended as a substitute bill, this proposal was instead incorporated into the act itsel£.74 Because "the McCarran Act accomplished so little," several Democratic senators, including the well-known liberal Hubert Humphrey from Minnesota, proposed a bill making it a federal crime to be a member of the Communist Party.75 Instead, Congress adopted the Communist Control Act of 19 54, a statute that has been described by one expert as "a bit cryptic and strange." 76 In section 2 of the act, Congress found that the although the Communist Party purports to be a political party, in reality, it is ''the agency of a hostile foreign power" and "an instrumentality of a conspiracy to overthrow the Government of the United States" by "any available means, including resort to force and violence." Congress therefore concluded that the party's existence presents "a clear present and continuing danger to the security of the United States." In addition to providing that "the Communist Party should be outlawed," the act provided that the CPUSA was "not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof. " 77 According to a commentator writing shortly after the law's enactment, "[i]t is clear from the debates that the act was intended to bar the Communist Party from appearing on the ballot in any national, state or local election." 78

The Legal Topography of the McCarthy Era

37

In its apparent zealousness to destroy the Communist Party, Congress included a puzzling inconsistency in the act. Although as already noted it appears to have been Congress's goal to outlaw the party, the act expressly provided that it should not be construed to amend the McCarran Act. But this meant that the party still had an obligation to register and file annual reports pursuant to that statute. It would certainly be difficult to destroy the party, yet simultaneously require the party to conduct such activities.79 Exposure

One of the most effective forms of governmental repression during the McCarthy era actually had no directly coercive impact on its victims. Pursuant to the strategy of exposure, the victims were neither fined nor put in jail. As a technical matter, at least, government did not dictate the firing of anyone from a position in the private sector. To be sure, it was known, and likely expected, by all involved that private individuals and entities would impose their own penalties on those exposed as present or former communists. But the role of government, at least as a formal matter, was confined to the exposure of the political associations of selected individuals. Although a variety of congressional committees were involved in this activity, far and away the best known is the now infamous House Committee on Un-American Activities. The committee's authorizing resolution was adopted in 1938. It provided that the committee was "authorized to make from time to time investigations of (r) the extent, character, and objects of un-American propaganda activities in the United States, (2) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (3) all other questions in relation thereto that would aid Congress in any necessary remediallegislation." 80 Throughout much of the McCarthy era, the committee's widespread, probing investigations into communist activity in a variety of activities caused great hardship to many. In a later chapter, I explore the interesting First Amendment implications for rights of privacy and nonassociation of the committee's investigation into communist activity in the film industry. 81 At this point, however, my goal is to focus on the committee's strategic role within the McCarthy era's repressive structure, as well as its constitutionally problematic nature. In referring to the committee's origins, Chief Justice Warren, speaking

The Legal Topography of the McCarthy Era

for the Supreme Court in Watkins v. United States, wrote: "It would be difficult to imagine a less explicit authorizing resolution. Who can define the meaning of 'un-American'? What is that single, solitary 'principle of the form of government as guaranteed by our Constitution'?" 82 Complicating the problem of uncertainty was that, according to the Chief Justice, "[t]he members of the Committee have clearly demonstrated that they did not feel themselves restricted in any way to propaganda in the narrow sense of the word. Unquestionably the Committee conceived of its task in the grand view of its name. Un-American activities were its target, no matter how or where manifested." 83 In addition to reading the scope of its authorizing resolution broadly, the committee largely ignored the constitutionally dictated need to propose and enact legislation. Justice Black, for example, wrote that "the chief aim, purpose and practice of the House Un-American Activities Committee, as disclosed by its many reports, is to try witnesses and punish them because they are or have been communists or because they refuse to admit or deny communist affiliations. The punishment imposed is generally punishment by humiliation and public shame." 84 The fact that the committee appeared to view its function primarily as one of exposure gave rise to a serious constitutional problem of separation of powers. Article I of the Constitution largely confines the powers of Congress to the performance of the legislative function. Under the Constitution's structure of separation of powers, it is the role of the judiciary to adjudicate and the role of the executive branch to enforce the law. On occasion, these functions may overlap, but as a theoretical matter at least, it is not Congress's job to punish or adjudicate. A congressional committee, then, generally may not investigate simply for the purpose of fact gathering or exposure. Rather, its investigatory activity for the most part must be directed toward the shaping of proposed legislation. As Chief Justice Warren wrote in Watkins, "broad as is [the congressional] power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress." 85 As more detailed constitutional inquiry reveals, however, the issue is more complex than this analysis suggests. In order to understand those complexities, it is necessary first to explore the history of the constitutional regulation of legislative investigations. Before the constitutional debate over the House Un-American Activities Committee (HUAC), the Supreme Court had on occasion given constitutional scrutiny to congressional investigatory activity. In its 1881 decision in Kilbourn v. Thompson, 86 the Supreme Court invalidated a congressional investigation as an unconstitutional violation of separation

The Legal Topography of the McCarthy Era

39

of powers. The House of Representatives had authorized an investigation into the circumstances surrounding the bankruptcy of Jay Cooke & Company, where the government had deposited funds. In particular, the congressional committee became interested in a private real estate pool that was part of the financial structure. Finding that the subject matter of the inquiry was "in its nature clearly judicial and therefore one in respect to which no valid legislation could be enacted," the Court held the investigation unconstitutional. Later decisions, however, construed the constitutional limitations imposed by Kilbourn narrowly, recognizing the practical need for Congress to possess sufficient power to investigate executive corruption. 87 The Kilbourn line of cases illustrates the constitutional dilemma faced by the Supreme Court in attempting to review the scope of congressional investigatory power. On the one hand, separation of powers performs an essential role in our constitutional system, assuring that no branch of government accretes excessive power to an extent that might threaten the continuation of democracy. 88 Were Congress to authorize its committees to investigate for what amount to purely judicial or executive purposes, the potential would exist for sweeping and unconstitutional congressional usurpation of the authority of the other branches. On the other hand, basic notions of political pragmatism dictate that Congress necessarily possess very broad power in the exercise of its investigatory authority. In order to perform its own constitutionally provided functions effectively, Congress cannot be unduly restrained in its ability to gather information that might prove relevant to performance of its constitutionally authorized power to enact legislation. Of course, not all legislative investigations ultimately lead to enacted legislation; it would therefore be unreasonable for the Court to retroactively invalidate a legislative inquiry solely on the grounds that it did not end in the promulgation of law. This is true, even if individual members of the committee issue public statements to the contrary. It is Congress, through its authorizing resolution, that legally determines the scope of a legislative committee's authority. Thus, where Congress has formally authorized a committee only to gather information for purposes of possibly proposing legislation, it would be awkward, to say the least, for a court to question that directive. If a congressional committee is to possess adequate authority to gather information, it must also possess authority to enforce its power by holding those who refuse to answer the committee's legitimate questions in contempt. However, because the contempt power is subject to serious abuse, it is subject to judicial review. When the constitutionality of HUAC's issuance of a contempt citation to a witness for refusing to answer questions was presented to the Supreme Court in Watkins v. United

The Legal Topography of the McCarthy Era States, the Court had available to it a variety of ways it could possibly have invalidated the committee's investigatory authority, some sweeping and some narrow. First, it could have held that, by its own admission, the committee viewed its role as primarily one of exposure, a nonlegislative power not delegated to Congress by Article I of the Constitution (as problematic as this approach might be). Second, it could have held that, in light of the unduly vague terms of the authorizing resolution, the committee's investigatory function was insufficiently confined. Third, it could have held that the specific investigation involved in the case (an investigation into communism in labor unions) was insufficiently tied to a clearly defined legislative purpose. Fourth, it could have held that, as a general matter, the committee's investigations amounted to an unconstitutional deprivation of due process because the exposure that resulted constituted punishment-and therefore a deprivation of liberty-without fair judicial procedure. Finally, it could have held that the committee's work inherently chilled and therefore abridged the exercise of constitutionally protected expressive and associational rights, by intimidating and exposing those who held unpopular political positions and associations. Chief Justice Warren's opinion for the Court at various points did express concern over the essentially nonlegislative function performed by the committee, the unduly vague terms of the committee's authorizing resolution, the negative impact of the exposure caused by committee investigations on First Amendment rights, and the possible deprivation of liberty without due process to which the committee's investigations gave rise. 89 Ultimately, however, the Court grounded its decision in a narrow and esoteric point of due process, tied to the witness's contempt citation for failing to respond to particular questions propounded by the subcommittee. The Court initially noted that the federal statute dictating that the failure to answer questions propounded by congressional committees constitutes contempt referred only to a failure to respond to "any question pertinent to the question under inquiry." 90 The Court reasoned that "[i]n fulfillment of their obligation under this statute, the courts must accord the defendants every right which is guaranteed to defendants in all other criminal cases. Among these is the right to have available, through a sufficiently precise statute, information revealing the standard of criminality before the commission of the alleged offense. " 91 Thus, in ligh.t of the Court's reasoning it logically followed that "a person compelled to make [the] choice [whether or not to answer questions] is entitled to have knowledge of the subject to which the interrogation is deemed pertinent. That knowledge must be available with the same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense. The 'vice of vagueness'

The Legal Topography of the McCarthy Era must be avoided here as in all other crimes." 92 The Court then found that it was impossible to determine the pertinence of the particular questions to the subcommittee's broader inquiry. 93 The result, the Court concluded, was a violation of the Fifth Amendment's guarantee of due process. 94 At best, the Watkins Court's restriction on the committee's authority amounted to little more than the imposition of a rather minimal constitutional restraint. What had begun as tough and sweeping talk on the Court's part early in its opinion rapidly diminished to little more than a slap on the committee's wrist. Watkins therefore failed to deal a death blow to the committee. In subsequent cases, Watkins would be irrelevant unless, before refusing to answer a question, the witness demanded to know the pertinence of that question to the committee's broader inquiry and had failed to receive an adequate response. Thus, in its subsequent decision in Barrenblatt v. United States, concerning a constitutional challenge to a contempt prosecution for a witness's failure to answer the committee's questions, the Court could-quite correctly-distinguish Watkins. Unlike the witness in the earlier case, the Barrenblatt Court noted, "petitioner in the case before us raised no objections on the ground of pertinency at the time any of the questions were put to him," 95 and in any event the pertinence of the question was made to appear "with undisputable clarity. " 96 The primary failing of the Watkins decision was its apparent reluctance to confront directly the serious separation of powers and First Amendment concerns to which the HUAC's sweeping investigations gave rise. Although it is impossible to know for sure, it is conceivable that this reluctance stemmed in part from the fear that imposition of a far reaching constitutional restraint on the committee would trigger an extremely negative congressional reaction, possibly extending as far as a legislative restriction on the scope of the Supreme Court's appellate jurisdiction. Article III, section 2 of the Constitution empowers Congress to make "exceptions" to the Court's appellate jurisdiction. Although the outer reaches of this clause have never been determined, 97 after the decision in Watkins legislation was introduced in Congress to restrict the Supreme Court's jurisdiction to review the constitutionality of the actions of congressional committees. 98 Had the Court ever directly faced the fundamental constitutional questions about the work of the committee, there should have been little doubt that HUAC was unconstitutional at its core and from its inception, in everything it did. This is not purely because of separation-of-powers concerns, however. In fact, when viewed in a vacuum, the separation-ofpowers argument is somewhat problematic. Although a congressional committee has no constitutional power to expose for the mere sake of ex-

The Legal Topography of the McCarthy Era

posure, the fig leaf of legislative proposals that came from the committee might well have satisfied this concern. Nevertheless, the inherent vagueness of the committee's authorizing resolution in empowering the committee could easily have been found to provide an insufficient limitation on the committee's investigatory authority. Moreover, once the serious First Amendment concerns to which the committee's activities gave rise are added to the mix, the inherent unconstitutionality of the committee's actions becomes clear. In Barrenblatt, the Court's majority sought to rationalize the committee's work on the grounds that it was aimed at the Communist Party, and that the Court had "consistently refused to view the Communist Party as an ordinary political party. " 99 This was in large part because of "the close nexus between the Communist Party and violent overthrow of government."100 The Court's assumed connection between the party and violent overthrow was itself extremely questionable, as explained in later parts of the book. 101 But for present purposes, that issue is irrelevant. Even if one were to proceed on the assumptions that the party was closely linked to attempted violent overthrow and that Congress possessed constitutionally delegated authority both to investigate and legislate against Communist Party attempts to engage in violent overthrow, the committee's actions would still have been inherently unconstitutional. The simple fact is that nothing in the committee's authority in any way concerned the investigation or regulation of sabotage, espionage, or attempted overthrow. The committee's authorizing resolution, it should be recalled, invested it with the authority to investigate "the extent, character, and objects of un·-American propaganda" and "the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution." If there is a fundamental premise of free speech theory, it is that government may not suppress expression on the basis of its ideology. There is, the Supreme Court has wisely noted, no such thing as a "false idea." 102 One may readily presume tha.t Congress has the constitutional authority to legislate against violent overthrow or its attempt and, under certain limited circumstances, the advocacy of these activities. But the concept of "propaganda" is by no means confined to expression advocating violent overthrow. Indeed, the committee's authorizing resolution expressly refers to "propaganda" that "attacks the principle of the form of government as guaranteed by our Constitution." Such expression could conceivably include arguments for the lawful alteration of the governmental process through a process of constitutional amendment-speech that most assuredly could not be con-

The Legal Topography of the McCarthy Era

43

stitutionally restricted on the grounds of its link to violent overthrow. At the very least, then, the committee's authorizing resolution is substantially overbroad, because it sweeps within the committee's reach a substantial amount of expressive activity that is fully protected by the First Amendment, as well as activity that is not. It could be argued that the committee's authorizing resolution was not confined to investigations that might lead to enactment of repressive legislation. The committee could just as easily have recommended nonrepressive actions, such as adoption of new governmentally supported programs designed to promote the values and benefits of our form of government. If this were the only power the committee possessed, its actions would not have violated the First Amendment. But the constitutionally fatal defect of overbreadth affects this argument, as well. For although it is surely correct that such nonrepressive legislation fell within the scope of the committee's authorizing resolution, the fact remains that by its terms the resolution was not confined to such constitutionally valid legislative activity. The committee was therefore equally authorized to conduct investigations that were designed to lead to enactment of unconstitutionally repressive legislation (if, indeed, they led to any legislation at all), and, unless rigidly confined to speech directly advocating immediate unlawful conduct, such legislative action would clearly violate the First Amendment. Thus, the committee's activities were constitutionally flawed, because their very origins were themselves constitutionally flawed in the shaping of the authorizing resolution. Because the committee's authorizing resolution was unconstitutionally overbroad, the work of the committee was constitutionally flawed at its core. Everything the committee did grew out of the authority granted to it in its authorizing resolution. All of its activities, then, should have been viewed as fruit of the poisonous tree: the unconstitutionality of the authorizing resolution casts a pall of unconstitutionality on all of the committee's work. It is truly unfortunate that for all of the Court's bluster in Watkins, it apparently failed to recognize this fundamental point of constitutional law. The First Amendment attack on HUAC's authorizing resolution once again underscores the fundamental flaw in much of the defense of the McCarthy era. The Supreme Court in Barrenblatt mistakenly brought under the anticommunist umbrella both governmental activities that could be justified under the First Amendment and those that could not. Similarly, today many commentators have rushed to justify all of the government's anticommunist actions during the McCarthy era on the basis of the modern revelations of espionage activity on the part of a number of American communists. It is just such undisciplined thinking that I seek to challenge here. 103

44

The Legal Topography of the McCarthy Era

Private Shunning

In addition to the complex and pervasive governmental repression of American communists during the McCarthy era, private anticommunist behavior constituted an important element of the period's repressive network. Of course, private entities and individuals possessed no legally valid authority to engage in directly coercive measures against American communists. No civilized democratic society can tolerate widespread vigilantism. Nevertheless, private individuals and organizations were able to cause significant harm to current and former communists, simply by the act of shunning. Private individuals and entities often deprived communists of professional opportunities, either by refusing to hire them or by boycotting establishments or industries that did hire them. Best known of these boycotting efforts were the blacklists of the entertainment industry. On both historical and constitutional levels, these issues are explored in detail in a subsequent chapter. 104 Suffice it to say at this point, however, that acts of private shunning give rise to far greater constitutional complexities than do governmentally operated repressive measures, for two reasons. First, the Constitution imposes far greater restrictions on the power of government than it does on private individuals and entities. Second, the Constitution grants far greater protections to the actions of private individuals and entities than it does to government.

CONCLUSION

For all of its political intrigue and personal tragedy, the McCarthy era was at its core a complex and overlapping system of governmentally and privately imposed restrictions, punishments and deprivations affecting American communists, both past and present. Privately imposed penalizations give rise to a unique set of constitutional issues that are explored in a subsequent chapter. Of far more serious constitutional concern were the government's efforts to penalize American communists. It did so through the form of benefit deprivations, criminal punishments, and legislatively orchestrated exposure. Clearly, injustices were committed by all branches of government during this era. It would be a gross oversimplification, however, to summarily conclude either that all of these penalizations represented unjustified violations of constitutionally guaranteed freedoms, or that they all constituted wholly legitimate protections of national security.

The Legal Topography of the McCarthy Era

45

In this chapter, I have cataloged, conceptualized, and classified the various forms of McCarthy-era repression in a manner that facilitates their analysis under the First Amendment. Some of these repressive measures may readily be deemed unconstitutional, regardless of what the Venona documents reveal about the shockingly wide scope of internal espionage conducted by American communists. Other forms of punishment and regulation, however, are just as readily found constitutional. A third category of penalizations is far more ambiguous and is therefore deserving of considerably more intense constitutional analysis. Such deprivations provide the focus of most of the remaining chapters. What the analysis clearly establishes to this point, however, is the legal and constitutional complexity of the free speech issues arising out of the political turmoil that was the McCarthy era. Thus, neither side of the modern debate over the McCarthy era should be as eager to rush to judgment as each appears to be.

CHAPTER THREE

McCarthyism, Free Expression, and the Role of Pathology in American History

INTRODUCTION

Whatever one thinks about the implications of the Venona and Comintern revelations, there is no doubt that many scholars continue to believe that the reactions of government during the McCarthy era toward those who were either communists or sympathetic with the communist cause were grossly disproportionate to any real threat. Indeed, as clearly demonstrated in other portions of this book, although communist espionage presented a real and serious threat to the nation, many of those who were victimized during the era never engaged in espionage, and much of the activity that government sought to regulate, punish, or suppress had nothing to do with espionage. 1 There can be little dispute, then, that the period was characterized by heightened intolerance of unpopular or offensive ideologies. 'Why such an atmosphere of widespread intolerance developed and how it fit within the flow of American history are issues that can be debated. Modern anticommunist scholars maintain that the intolerance represented nothing more than a reasonable reaction to an extraordinary threat to American society. Yet one might reasonably reject this view and instead suggest that the period represented an aberrational departure from the nation's established tradition of civil liberties and tolerance of alternative political philosophies as a result of the stresses caused by the onset of the atomic age. According to this view, the existence of the cold war and its threat of nuclear attack gave rise to an irrational level of fear, unjustified by reality. Finally, one might reject both of these positions by arguing that the intolerance of the McCarthy era differed very little from a number of other periods in American history, during which both gov-

McCarthyism, Free Expression, and Pathology

47

ernment and private institutions persecuted those who held unpopular views. Such times, it might be argued, are characterized by a form of constitutional pathology, during which the nation's foundational commitment to civil liberties is either seriously undermined or all but abandoned. In addition to this important issue of historical analysis, recognition of the existence of such pathological periods in the nation's history gives rise to significant issues of free speech theory. At least one leading scholar, Vincent Blasi, has argued that all of free speech doctrine must be structured with pathological periods-such as the McCarthy era-in mind. 2 Under Blasi's view, the First Amendment must be confined in nonpathological periods in a manner that will render it a more effective protection against the extraordinary threats posed to free speech interests during periods of pathology. In this chapter, I undertake two tasks. First, I will explore the concept of pathological periods within the flow of American history, examining both their nature and frequency. Second, I will examine Blasi's "pathological perspective," designed to shape the First Amendment right of free expression to deal specifically with periods of pathology, and describe what I consider to be its very troubling implications for free speech theory. I conclude that the perception of a limited number of isolated periods of pathology in American history seriously understates the nation's tendency toward ideological intolerance. I further conclude that even if the concept of limited and isolated pathological periods did characterize American history, Blasi's suggestion for dealing with the problem through the shaping of First Amendment doctrine would cause considerably more harm than good.

PATHOLOGY IN AMERICAN HISTORY

Pathological periods have been defined as intermittent times characterized by "the existence of certain dynamics that radically increase the likelihood that people who hold unorthodox views will be punished for what they say or believe." 3 That there have existed periods in American history in which such events took place is beyond question. From a purely historical perspective, however, the question is whether such periods have been sufficiently constant so as to describe them as the norm, rather than as relatively isolated exceptions. Before one can attempt to answer this question, it is necessary to provide and discuss examples of pathological periods. Before the twentieth century, the period most deserving of the pathological label occurred early in the nation's history. It was a period best

McCarthyism, Free Expression, and Pathology

known for passage of the Sedition Act, which was an outgrowth of the Federalist Party's efforts to suppress its Jeffersonian opposition. 4 The act made criminal "any false, scandalous and malicious" writings, utterances, or publications against the government, Congress, or the president with intent to defame them, bring them into disrepute, or excite against them the hatred of the people. 5 Ironically, after he ascended to power, Jefferson himself supported state efforts to suppress the Federalist-supporting press. 6 Historian Garry Wills has suggested that although "the laws look bad enough, on their face, to make one wonder if a Congress willing to pass them was not becoming despotic .... an explanation short of the conspiratorial is available.'' 7 To understand Wills's argument, it is necessary to put oneself in the mindset of the time. "When America's government was set up," Wills argues, "the first Federalist administrations thought they were not a party but the government, and party was only what opposed government.... The argument [by the Jeffersonian Republicans] that there was something wrong with partisanship was reflected in the secrecy with which Jefferson organized the opposition.'' 8 Although Wills concedes that "[t]his does not excuse the criminalizing of opinion in the sedition laws," he concludes that "it shows that party organization could still be considered an enemy of freedom, not its expression." Similarly, Wi!lls rationalizes the suppression of the press during the period: "Insofar as newspapers were seen as secretly funded expressions of partisanship, they were subject to the same odium as parties themselves.'' 9 When the dust settles, all Wills appears to be suggesting is that although the Federalist government of the time was engaging in unabashed suppression of political opposition, somehow this was acceptable because it viewed those who opposed government as disloyal. But the same could probably be said of any pathological period. Indeed, his point actually underscores the problem of First Amendment pathology. The next major period that could reasonably be characterized as pathological took place during the Civil War, when the Lincoln administration treated opposition to the war as borderline treason. Illustrative was the much publicized arrest in 1863 of Clement L. Vallandigham, a prominent Democratic politician and former member of Congress, for an antiwar speech he had made several days before. 10 To many opponents of the Lincoln administration at the time, "the Vallandigham arrest was not an isolated event, but part of a larger attack on political freedom." 11 According to one authority, "[b ]oth before and after Vallandigham's arrest, throughout the nation, the administration suppressed newspapers, banned them from the mails, and arrested editors." 12 Although some have argued that the Vallandigham arrest should be deemed atypical, 13

McCarthyism, Free Expression, and Pathology

49

one authority has suggested that this view "overlooks the chilling effect of the episode on other potential critics and the encouragement it gave to freelance suppressors." 14 Although after the Civil War labor-management tensions grew almost immediately, the next major period that is appropriately characterized as pathological occurred during the latter part of the nineteenth century, when the struggles between labor and industry led to significant suppression of political dissent. According to political scientist Robert Justin Goldstein, "all of the various techniques used to repress labor [developed earlier in the century] were gradually developed and institutionalized by business and governmental elites: the company town, the use of private police, private arsenals and private detectives, the deputization of private police, the manipulation of governmental police agencies, the revival of conspiracy doctrine and the labor injunction." 15 Goldstein suggests that "[t]he general characteristics of American society during the r873-1900 period helped to create a climate which facilitated a repressive response on the part of ruling elites during periods of increased stress." 16 Such periods, during which those in power sought to suppress the very beginnings of radical worker movements, occurred in the r87os, r88os, and r89os. In the latter part of the nineteenth century, fears about the growth of the anarchist movement spurred widespread repressive responses. 17 The period was characterized by such infamous developments as the Pullman strike, during which both federal troops and state militias were called out to suppress strikers. 18 Although the pathological era of the late r 8oos ended with the close of that century, early in the next century new forms of suppression developed. Starting in 1905, the suppression of radical labor unions such as the International Workers of the World (IWW) increased in intensity. 19 Closely related was the suppression of anarchist movements. As Goldstein, notes, "[f]ear of anarchism had never died out in the U.S., and the many anarchist outrages in Europe during the r89os had kept many Americans on edge." 20 The assassination in 1901 of President McKinley by Leon F. Czolgosz made matters worse. Although it is not clear that McKinley's assassin actually was an anarchist, his foreign-sounding name and rumors of his anarchistic connections set off yet another anarchist scare throughout the nation. 21 The anarchist scare of the early twentieth century appears to have marked a shift in the victims of political repression. In the words of Goldstein, in prior years, the overwhelming majority of repressive measures were directed against the labor movement, usually in the context of strikes or active organizational activ-

50

McCarthyism, Free Expression, and Pathology

ity. Persons were rarely, if ever, prosecuted simply for advancing "bad" ideas or belonging to groups or political parties which advocated them .... [A]fter the passage of the anarchist laws, repression was increasingly directed against those who advocated or belonged to groups which advocated "bad" ideas, including legal political parties such as the Socialist and Communist Parties. 22 Suppression of anarchists was rapidly succeeded by widespread suppression of antiwar expressive activity during World War 1. 23 Federal and state governments actively suppressed those involved in the antiwar movement. 24 Many of the laws that they enacted were sweeping in their restriction of dissent. For example, under the Minnesota Espionage Act, it was held a crime to discourage women from knitting by making the remark, "No soldier ever sees those socks." 25 Many of the most famous Supreme Court free speech decisions considered the constitutionality of such suppressive measures. Schenck v. United States, 26 Abrams v. United States,l? and Debs v. United States 28 all concerned the constitutionality of convictions pursuant to the Espionage Act of I9I7 or its r9r8 amendment, prohibiting the publishing of language "intended to incite, provoke or encourage resistance" to the war effort. 29 Under the Espionage Act, the Postmaster General was empowered to bar from the United States mail any material deemed "subversive." 30 This legislation has been rightly described as classic forms of suppression of speech. 31 The period was characterized by a "general war-time hysteria fostered by the Wilson administration" and "the virtual complete collapse of support for concepts of civil liberties among all segments of the population except for those groups that came under direct attack." 32 After the war, the nation's repressive tendencies turned toward the radical left wing of the political spectrum. The nation fell under the grip of the so-called Red Scare of I9I9-I920, described by historian Ellen Schrecker as "a massive crackdown of the left." 33 It was, according to Schrecker, "not a coordinated campaign, but rather a number of public and private initiatives undertaken to punish radicals and blunt labor organizing. " 34 The period is best known for the so-called Palmer raids, which were roundups and eventual deportations-organized by Attorney General A. Mitchell Palmer after an explosion near his house, planted by an Italian anarchist-of radical aliens in November I9I9 and January r920. Palmer, who had presidential ambitions, sought to avoid the appearance of being "soft" on communism. 35 According to Schrecker, the raids, which involved "massive violations of human rights," 36 developed into "the symbolic culmination of all the wartime and postwar political repression." 37 As is usually the case in times of pathology, the governmental repres-

McCarthyism, Free Expression, and Pathology

sian brought about by the Palmer raids was not totally without cause. As historian Harvey Klehr has noted, "The first 'Red Scare' was prompted by left wing violence. A group of Italian anarchists, led by Luigi Galeani, launched a terrorist campaign in 1914. In 1919 more than thirty bombs targeted opponents of radicalism including Justice Oliver Wendell Holmes, John Rockefeller, Attorney General A. Mitchell Palmer, and a variety of United States Senators. " 38 Klehr also pointed to "blood-curdling threats about overthrowing the government," issued by underground wings of the newly created Communist Party. 39 But the essential characteristic of pathological periods is in their overreaction: government justifies sweeping erosions of constitutional rights of those who present no danger of serious harm but whose ideology government deems offensive, on the basis of a far more limited actual threat posed by a relatively small number of individuals. Eventually, the hysteria of the Red Scare subsided. The unjustified violations of civil liberties ultimately caused many respected Americans to condemn the Palmer raids. 40 After the Red Scare ended, pathology returned briefly during the World War II period. 41 However, the McCarthy era, which in many ways could properly be described as the paradigmatic pathological period, dwarfed anything that had occurred between the Red Scare period and the era's onset. Yet some might reasonably question the description of the McCarthy era as a pathological period, in light of the important revelations of the Venona and Comintern documents. 42 After all, if we now know that most of the seemingly wild charges made by conservatives against American communists during the McCarthy era were, in fact, accurate, then perhaps one should describe the era as simply a rational response to an accurately perceived danger. However, as I have argued throughout these pages, the situation is considerably more complex than such a simplistic analysis of the implications of the Venona and Comintern documents would suggest. Even under a worst-case scenario, only a fraction of the party membership was knowingly involved in the espionage effort. Many of those persecuted during the era presented no such danger; their crimes appear to have been nothing more than advocacy of an extremely unpopular ideology. 43 Moreover, as a later chapter explains in detail, even many of the party leadership who were in fact directly involved in espionage activities were prosecuted not for espionage, but for little more than the exercise of their constitutional right to advocate an unpopular political position. 44 Even taking into account the dramatic revelations of the 1990s, it appears clear that for the most part, the McCarthy era may appropriately be labeled a pathological period. That the revelations of the Venona and

5 ,,

"·

McCarthyism, Free Expression, and Pathology

Comintern documents in no way vindicate all of the brutal suppression of the McCarthy era is demonstrated by the attitudes of Haynes and Klehr, the well-known anticommunist historians who have done the most significant work to date on both sets of previously secret documents. Instead of lauding McCarthy for finally being vindicated, Haynes and Klehr bluntly suggest that much the opposite is true. They note that at the time in question some conservative and partisan Republicans, led by McCarthy, launched a comprehensive attack on the loyalties of the Roosevelt and Truman administrations. Some painted the entire New deal as a disguised Communist plot and depicted Dean Acheson, Truman's secretary of state, and George C. Marshall, the Army chief of staff under Roosevelt and secretary of state and secretary of defense under Truman, as participants, in Senator McCarthy's words, in "a conspiracy on a scale so immense as to dwarf any previous such venture in the history of man. A conspiracy of infamy so black that, when it is finally exposed, its principals shall be forever deserving of the maledictions of all honest men." [Yet] there is no basis in Venona for implicating Acheson or Marshall in a Communist conspiracy, but because the deciphered Venona messages were classified and unknown to the public, demagogues such as McCarthy had the opportunity to mix together accurate information about betrayal by men such as [Assistant Secretary of the Treasury] Harry White and Alger Hiss with falsehoods about Acheson and Marshall that served partisan political goals. 45

Although there is no definite point marking the end of the McCarthy era, it is clear that the era postdated McCarthy himself. 46 The House OnAmerican Activities Committee's aggressive investigation of internal communist activity, for example, continued into the next decade. 47 But whenever the era is actually deemed to have ended, it surely was not followed by an extended period of societal tolerance of active dissent. Although "[t]he Kennedy years clearly saw a significant increase in the amount of dissenting activity in American society and a general improvement in the climate for civil liberties," 48 there were exceptions, such as the governmental treatment given to the radical left wing's unilateral disarmament movement of the late 1950s and early r96os. According to Goldstein, " [t ]he peace movement suffered considerable harassment and red-baiting from government officials." 49 Once the Vietnam era began, widespread repression returned. In the words of Goldstein, "[d]uring the 1965-75 period ... the United States went through a period of political repression, which, at its greatest height in 1967-71, exceeded in intensity any other time in the twentieth century with the possible exceptions of the I917-20 and 1947-54 periods. The social setting for this intense period of political repression was a back-

McCarthyism, Free Expression, and Pathology

53

ground of political turbulence, dissent and violence unmatched in American history since the Civil War." 50 Whether or not one decides to describe the post-September II, 200I, era as yet another period of pathology, 5 1 there is little question that the nation's history has been marred by numerous eras of intense ideological repression by government, ruling private elites, or both. This fact gives rise to two distinct but equally important questions: first, is there a coherent pattern of historical causes that explains why such periods occur; and second, to what extent should First Amendment doctrine be reshaped in an effort to guard against the negative consequences for the interests of free expression associated with these eras?

EXPLAINING PATHOLOGICAL PERIODS IN AMERICAN HISTORY

Perhaps it is not all that difficult to glean the underlying dynamic at work during pathological periods. "[P]olitical repression," Goldstein writes, "has frequently been a rational response by political authorities to increasing threats to their power." 52 Schrecker makes a similar point: "There is ... considerable validity to the view that the process of demonization makes it easier for people in power to retain their control. " 53 To be sure, political repression has gained an especially high level of intensity at various points in American history. 54 It may well be true, as Goldstein argues, that these periods are explained by the facts that "a high level of strain and dissent will tend to increase the anxiety of political authorities and incline them toward a policy of repression, and [that] the existence of suitable target groups and the lack of opposition to repression by key elites will tend to make adoption of a strongly repressive policy politically feasible and successful." 55 But if one deconstructs this statement, it appears to come down to little more than this: Whenever dissent intensifies, repression will intensify correspondingly. When-and only when-the dissent subsides, then the repression will subside accordingly. Yet if this assertion represents an accurate description of American history, then it means, simply, that repression will not be imposed only when such a response is unnecessary for government to maintain its power. When the McCarthy era is placed within the flow of American history, it does not appear to be as aberrational as one might initially have thought. Of course, events such as the Soviet development of the atomic bomb, the communists' assumption of power in China, and the North Korean invasion of South Korea may well have intensified society's re-

54

McCarthyism, Free Expression, and Pathology

pressive tendencies, arguably rendering the era both more intense and pervasive than many of its predecessors. But the reaction could just as likely have been to the ever-growing influence of American communists during the war years. Thus, the insight revealed by even a brief review of American political history is that those tendencies always exist in a latent form, ready to be invoked at any point whenever those in power consider that power to be meaningfully threatened by the possibility of widespread political dissent.

THE IMPACT OF THE PATHOLOGICAL PERSPECTIVE ON FIRST AMENDMENT THEORY

When Professor Blasi fashioned his pathological perspective as a means of shaping First Amendment theory, he proceeded on the assumption that pathological periods in American history were relatively rare occurrences. His goal, therefore, was to shape First Amendment doctrine in nonpathological times in order to reduce the vulnerability of the free speech guarantee during those period of extraordinary stress. However, as just demonstrated, closer examination of American history tends to reveal what is, relatively speaking, far less dramatic variation in political attitudes toward repression. Given this revised view of pathology in American history, one may seriously question the coherence of Blasi's analysis. Rather than coming in the form of discrete episodes, pathology pervades the flow of American political history. This insight renders dubious the idea that there will exist opportunities to shape First Amendment doctrine in nonpathological times to avoid the discrete threats that occur episodically. Equally important is that Blasi's pathological perspective is woefully misguided purely as a matter of constitutional theory, even were one to assume the accuracy of his suggested historical framework. For reasons that I will explain, had the Supreme Court at any point either before or during the McCarthy era adopted the reasoning of the pathological perspective, the negative impact of that era of free speech rights would have been reduced not at all. Equally important is the fact that acceptance of Blasi's theory would undoubtedly have severely negative consequences on the development of free speech theory and doctrine, well beyond the area of political speech primarily affected during the McCarthy era. For much of the last century, legal scholars and jurists debated the appropriate analytical approach to the protection of free speech. Reasonable minds have long differed over both the First Amendment's scope 56 and rationale. 5 7 Blasi's analytical model, however, was developed not on

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55

the basis of assumptions or conclusions about the proper values fostered by the free speech guarantee, but rather as a strategic endgame in which First Amendment doctrine is manipulated in certain areas solely because of the goal of affecting that doctrine in other areas. In order to achieve optimal protection of what he labels "core" free speech values in times of constitutional stress, Blasi urges the structuring, in calmer times, of a First Amendment that is both lean and mean. In Blasi's words, "adjudication in ordinary times should be heavily influenced by the goal of strengthening the central norms of the first amendment tradition against the possibility of pathological challenges." 58 Blasi determines what is a "central norm" of the First Amendment by reference to traditional First Amendment practice. His emphasis on central norms appears to exclude, or at least seriously reduce, the level of constitutional protection given to "nontraditional" types and forms of expression, including, for the most part, varieties of nonpolitical speech. 59 In addition, Blasi argues that the pathological perspective dictates use of simplified tests of First Amendment protection, 60 as well as rejection of ad hoc analyses focused on the level of dangerousness associated with particular expression. 61 There is much that is troubling in Blasi's pathological perspective on First Amendment analysis. Although clearly intended as a means of ultimately strengthening the First Amendment, the pathological perspective is premised on wholly speculative assumptions concerning human behavior62 and is inconsistent with the lessons of both historical evidence and common sense. 63 In fact, a strong case can be made that the pathological perspective would actually prove counterproductive to the attainment of its asserted goal or strengthening the First Amendment in times of extraordinary political or social stress. 64 But even if one were to assume that the pathological perspective did achieve its goal of assuring protection of so-called core speech in times of crisis, its costs to the nurturing of First Amendment values would still be so great as to be prohibitive. 65 It is therefore advisable to reject the pathological approach as a viable mode of First Amendment analysis. This discussion is designed to explore both the fallacies and costs of the pathological perspective.

THE FAILURE OF THE PATHOLOGICAL PERSPECTIVE TO ATTAIN ITS GOAL

The logic of the pathological perspective proceeds basically along the following path of reasoning: ( r) in so-called pathological times, internal widespread public pressure is placed upon "core" First Amendment speech 66 ; (2) in order to avoid, or at least ameliorate such pressure, it is

McCarthyism, Free Expression, and Pathology

necessary to restructure First Amendment protection in nonpathological tirnes 67 ; (3) wide-ranging extension of First Amendment protection to nontraditional forms and subjects of expression dilutes the authority of the free speech guarantee, thereby reducing the credibility and power of all First Amendment protection in the eyes of the public68 ; (4) such dilution and undermining of credibility will reduce the protective force of the First Amendment during pathological periods of great political stress, thereby increasing public pressure against core First Amendment protections and undermining the judiciary's ability to resist such pressures 69 ; (5) therefore, in order to reduce the dangers to core free speech values during pathological periods, it is necessary to severely limit the categories of expression covered by the First Amendment's reach in more normal times.7° As Blasi states, the lesson of the pathological approach is that "we must constantly take care not to trivialize the meaning of free speech. " 71 Blasi's analysis is amazing for its sweeping, totally unsupported assumptions about the nature of human reason and reaction in times of great political stress. Even if we were to engage in Blasi's practice of speculation about such matters, it is by no means intuitive that the stress placed on so-called First Amendment core values during pathological periods will be ameliorated by adoption of a narrow reach of First Amendment protection during less pressured times. Is it reasonable to surmise that individuals fearful of holders of a particular unorthodox political view (for example, anarchists, communists, or Nazis) will be any less outraged at the judicial extension of First Amendment protection to the speech of these groups, merely because during normal times the Supreme Court had chosen not to extend free speech protection to commercial speech, video games, or pornography? A more likely scenario is that the level of public outrage during this period will be determined largely, if not exclusively, by the level of the public's fear of the groups in question at the time, rather than on the basis of unrelated precepts of First Amendment doctrine. That no direct correlation exists between Supreme Court extension of constitutional protection to novel forms of expression on the one hand and the intensity of negative public reaction to the First Amendment's application to unpopular groups during pathological periods on the other is historically demonstrated by two of the previous pathological periods to which Blasi points: the Red Scare of the 1920s and the McCarthy era of the 19 sos. 72 It can hardly be suggested that before either period, the Supreme Court had in any way extended constitutional protection to novel forms of speech. In the 1920s, the Court had barely extended the constitutional protection even to purely political speech, and on several

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occasions in the 1940s the Court had expressly rejected such arguably diluting extensions.73 Obviously, the Court's refusal to make novel First Amendment extensions did not prevent the development of First Amendment pathology at its most intense. Why, then, is there any reason to suppose that current refusals to engage in such extensions will in any way prevent similar levels of severity during future pathological periods? One might respond that as harmful as those previous pathological periods were, they may well have been worse had the Court actually engaged in such novel extensions. But there is no logical basis on which to suppose this is true. In any event, one could always engage in such a tailchasing form of argumentation. When public pathology reaches the intense levels it did in the 1920s and 1950s, it becomes reasonably clear that a judicial refusal to extend novel First Amendment protection is an inadequate means of bringing pathology under any real level of control. More to the point, it is unreasonable to suppose that those who were caught up in the anticommunist fervor of those periods would have been more antagonistic to First Amendment protection for communists had the Court extended First Amendment protection to such expression as commercial speech. It is unlikely that one involved in a debate in 19 50 over First Amendment protection of communist speech would have persuasively argued against such protection on the ground that the First Amendment had already been trivialized by its extension to commercial speech. Although I do not personally recall the nature of public debate in the early 19 5os, I would assume that the First Amendment arguments focused, as they logically should have, solely on the weighing of the need to preserve free exchange of ideas against the threat to national security presented by communist speech. It is difficult to believe that anything the Supreme Court had said about the outer reaches of First Amendment theory in wholly unrelated areas of expression would-or reasonably should-have had any effect on that debate. · In any event, the main constitutional problem during these pathological periods quite probably was not the existence of widespread public antagonism to free speech protection for communists, but rather the failure of the Supreme Court itself to resist "the paranoia of the age." 74 Examination of the major Supreme Court decisions during these two periods fails to reveal a judicial submission to public pressure, but rather demonstrates substantial concern on the part of the justices themselves with the very dangers that troubled the public. Thus, even in Schenck v. United States,75 where a majority purported to adopt the seemingly protective clear and present danger test, Justice Holmes utilized the test to suppress speech absent any showing of immediate danger arising from it. Although Holmes changed his view in subsequent decisions, a majority con-

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tinued to uphold suppression of speech on grounds of danger, although even at the time, the danger must have appeared to all to be at best remote.76 Similarly, in Dennis v. United States,7 7 the Court upheld a conviction of Communist Party leaders solely for engaging in speech activities, absent any real showing of any temporally linked danger of attempted overthrow. Instead, the majority justified suppression on the basis of "the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go of our relations with countries with whom petitioners were in the very least ideologically attuned." 78 The Court relied on this asserted linkage, even though Chief Justice Vinson's opinion neither alleged nor proved any link between the petitioners' activities and any of these conditions in foreign nations or with any foreign power. It is, of course, possible that each of these opinions merely reflected an implicit fear of negative public reaction from a speech protective result. This is a complex psychological issue upon which one can only speculate. But the tenor of the opinions surely reflects no obvious reluctance on the justices' part to make the decisions that they reached. Rather than succumbing to public pressure, the authors of these opinions actually seem to have been leading the charge in favor of suppressing unpopular political views. In all of these decisions, it appears that the problem was not fear of public pressure, but simply disregard by a majority of the Justices of the judiciary's fundamental role as the ultimate protector of minority rights and constitutional values. Unless and until the Court becomes imbued with this essential lesson of constitutional democracy, the serious constitutional harms that take place during pathological periods will not be reduced, regardless of what the Court does or does not do about novel extensions of First Amendment protection. Blasi contends that "respect for the understandings of the framers and for classic, time-honored precedents can also assume special importance in pathological periods as the source of a stable perspective for judges who otherwise would be swept up in the disoriented, fearful mentality of the times. " 79 Such an analysis, however, represents an unduly condescending attitude toward the influences on a judge's decision-making process. Supreme Court justices should not require precedents containing simplistic assertions concerning basic First Amendment values in order to recognize their obligation in a constitutional democracy; if they fail to live up to their role absent such simplistic assertions, it is difficult to imagine that the existence of such precedents would make much difference. Indeed, during both pathological periods pointed to by Blasi, the Court's majority had available to it the eloquent exposition on First Amendment values of such notable dis-

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59

senters as Holmes, Brandeis, Black, and Douglas. Yet these statements were insufficient to change the result. Admittedly, it is difficult to predict what would have happened had the Supreme Court, during those periods of political stress, actually lived up to its constitutional obligation. Perhaps public animus would have intensified, and been redirected toward the Court itself. On the other hand, it is equally conceivable that a persuasive articulation and defense of fundamental constitutional values by the justices would have had the exact opposite effect, by defusing the public's rapidly developing mob psychology. In either event, it is difficult to believe that whatever the Court had previously done on the frontiers of First Amendment doctrine would have had anything more than a marginal or remote impact on public receptivity to judicial protection of political views that are widely feared and despised. Even if one were to accept Blasi's asserted linkage between the First Amendment's reach in calmer times and its effectiveness in pathological times, it is at least equally arguable that extension of the First Amendment's scope to novel areas during normal times would actually have a beneficial effect during pathological periods. If we accept the view that the Supreme Court is engaged in a moral interchange with the public, 80 as Blasi apparently does, 81 it is conceivable that reserving the essence of First Amendment protection for major political battles could actually cause the First Amendment to atrophy. The lives of most people are not directly affected by such cases. If the Court could, by means of decisions extending the First Amendment's reach, articulate how the values fostered by the free speech right affect issues which most people face regularly, perhaps public understanding of and sympathy with these values would become more immediate and concrete. In certain situations, use of Blasi's approach may even result in a form of reverse dilution: refusal to extend the First Amendment's scope to novel areas of expression may logically imply reduced protection in more traditional areas of coverage. For example, the primary justification cited in support of the constitutionality of a ban on cigarette advertising is that such advertising is aimed largely at those who are easily persuaded and incapable of making a valid judgment on their own. 82 If such an argument were used to justify suppression of truthful speech receiving full First Amendment protection, it would of course be summarily rejected; it is only because commercial speech is deemed not to fall within the First Amendment's core that such an argument could even be seriously suggested. Yet if we accept this logic in the cigarette-advertising context, it is possible that we will have conceded more than we had thought. For once we accept the theory that individuals may be incapable of evaluating

6o

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truthful information in making life-affecting decisions as a justification for governmental suppression of such information, we may well have laid the groundwork for a process of reverse dilution. Some may subsequently draw on the logic of the cigarette advertising ban as a justification for the suppression of truthful information in other contexts. Rejection of a reduced level of protection for commercial speech, however, would preclude acceptance of the asserted justification in the cigarette advertising context, just as it would today in the context of political speech, thus precluding the danger of future expansions of this precedent into other areas of First Amendment protection. Admittedly, these assertions amount to little more than speculation, but the point to be emphasized is that the exact same criticism could be made of Blasi's suggested linkage. Because the most that can be said for the pathological perspective is that it is no more likely to be accurate in its fundamental assumptions than the exact opposite presumption, it is quite doubtful that the bulk of current free speech theory should be shaped to meet its dictates: the pathological perspective has failed to meet its burden of production.

ASSESSING THE COSTS OF THE PATHOLOGICAL PERSPECTIVE: ADOPTING AN OPTIMISTIC APPROACH TO FIRST AMENDMENT THEORY

Rejection of the pathological perspective does not automatically lead to the conclusion that the First Amendment's reach should be extended to new frontiers. Rather, it means only that the question of whether such extensions are to be made would be resolved by an assessment of the values properly thought to be served by the free speech right and the implications that can be logically drawn from those values, instead of on the basis of an attempted strategic linkage designed with the primary goal of attaining public acceptance. It is the virtual exclusion of such a value analysis that is the most troubling element of Blasi's pathological perspective. By adopting what amounts to a garrison state mentality, the pathological perspective attempts to save the First Amendment by reducing it to a bare-bones minimalist model, without ever inquiring whether fundamental free speech values are sacrificed as a result. It is no doubt important to maintain the constant protective vigilance derived from the theoretical pessimism of the pathological perspective. But it is also important not to sacrifice what we are trying to protect in a paradoxical attempt to preserve it. It is therefore necessary to recognize

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6r

the importance to free speech theory of a positive perspective on the First Amendment-to focus on the positive role of the free speech guarantee as a catalyst in tapping and developing the uniquely human creative and intellectual capacities of the individual. 83 Such a revised focus would enable us to recognize the Pyrrhic nature of any possible victory to which the pathological approach might lead. Of course, if one's value analysis of the free speech guarantee led one to conclude that it is only the traditionally protected, largely political speech that deserves protection in any event, then the costs of adopting the pathological perspective are virtually nonexistent. To be sure, certain scholars 84-including Blasi 85-have reached a conclusion similar to this, wholly apart from the insights of the pathological perspective. But Blasi does not rest his arguments in favor of the pathological perspective on such independent theoretical grounds. If he had, I would be more than willing, as I have in the past, to point out the fallacies in his thinking. 86 Instead, Blasi implies that one should accept the pathological perspective, regardless of one's theoretical approach to the values of free speech. Indeed, his analysis barely makes reference to these broader theoretical questions. Such an absence of any broad-based value analysis inherently dooms Blasi's defense of the pathological perspective, because it completely ignores the costs that ensue from acceptance of his model. Although scholars have long debated the values served by free speech protection, it is reasonable to proceed on the assumption that at some basic level the First Amendment guarantee is intended to facilitate human growth, flourishing, and intellectual development. Such growth and development may be furthered by art, literature, dance, and even expression that facilitates private self-government by informing a consumer's purchase of goods and services. 87 Blasi's pathological perspective would sacrifice as peripheral many forms of expression that further these goals in an effort to insulate the free speech guarantee in times of political stress. But as already explained, there is no basis in fact or logic to believe that sacrificing nonpolitical expression in normal times will in any way strengthen the First Amendment in pathological times. Under Blasi's pathological perspective, then, we would sacrifice numerous forms of expression that may significantly foster central First Amendment values, in an attempt to bring about what are highly likely to be wholly illusory benefits. It is difficult to imagine a more misguided proposal for the shaping of modern First Amendment theory. Close examination of the First Amendment's enforcement-or lack of it-during the McCarthy era quite properly leads to a major restructuring of certain aspects of First Amendment doctrine, particularly in the area of unlawful advocacy regulation. 88 But to summarily lop off sub-

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stantial portions of First Amendment protection, as Blasi urged, would not strengthen the First Amendment in times of great political stress. It would merely undermine the effort to foster many of the values that underlie the constitutional guarantee in the first place.

CONCLUSION

One could hardly doubt that throughout the nation's history, periods of intensely repressive pathology have plagued American society. On an empirical level, however, it is questionable whether either the intensity or pervasiveness of these periods is nearly as variable as many might think. Historical evidence tends to show, on the contrary, that pockets of repression have existed throughout much, if not all of American history, since the nation's very founding. To the extent the intensity of these periods has varied, it appears directly correlated to the scope and intensity of political dissent at the time. The point, in other words, is that virtually all periods of strong political dissent throughout the nation's history have been met with a corresponding rise in repressive pathology. Whether or not this empirical insight is accurate, however, the pathological perspective on First Amendment theory developed by Blasi, designed to deal with such situations by adjusting First Amendment doctrine in calmer times, fails to achieve its goal and will often prove to be counterproductive in its efforts to assist and protect the growth of free speech val!ues. The pathological perspective is theoretically flawed and potentially harmful to basic free speech interests. Premised on highly speculativeindeed, arguably counterintuitive, illogical, and historically unsupported-assumptions about human and political behavior, the pathological perspective unwisely attempts to push to the background of First Amendment debate fundamental issues of free speech value. Nothing Blasi states in support of the pathological perspective establishes that potentially so high a cost must be paid in order to maintain a strong and viable constitutional guarantee of free speech.

CHAPTER FOUR

Unlawful Advocacy, Free Speech, and the McCarthy Era

INTRODUCTION

The revelation of the Comintern documents in the early 1990s and the release of the Venona documents in the middle portion of that decade dramatically altered the historical topography of the McCarthy period. Throughout the 1970s, liberal "revisionist" historians defended the Communist Party of the United States of America (CPUSA) and sought to debunk the notion that that it was controlled by the Soviets and engaged in illegal activities. By 1980, their position heavily dominated historical scholarship. 1 In the face of the Venona and Comintern documents, many scholars have conceded that these arguments are now untenable. 2 Anticommunist scholars have now begun a revisionist effort of their own, defending the persecution of the CPUSA and, in some instances, attempting to resurrect Senator McCarthy's tattered reputation.3 No longer could liberal historians reasonably maintain that governmental oppression of American communists lacked any basis in reality. The Comintern documents demonstrated that since its inception, the Communist Party in America had been heavily influenced, if not totally controlled, by the Soviet Union. 4 Although certain left-leaning hard-liners remain unconvinced, for the most part scholars have conceded that the Venona documents establish that American communists had engaged in substantial espionage activity, passing on secret or classified information to Soviet agents and facilitating Soviet espionage in other ways throughout much of the 1930s and 194os. 5 Although the release of the Comintern and Venona documents in the 1990s has done much to upset the historical apple cart, neither side of the post-Venona historical debate appears to have grasped the true implications of those documents for a proper understanding of the period. This

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is because although the McCarthy era has long been thought to possess substantial relevance to issues of free speech, 6 no commentator to date has focused on the relevance of free speech theory in assessing the implications of the recently revealed documents. This is a serious mistake that ignores the great significance of First Amendment theory for our modern understanding of the era. Equally important is that the application of First Amendment theory to the McCarthy era simultaneously has important implications for our understanding of free speech theory in general. Viewing the historical period and the newly revealed documents from the perspective of free speech theory accomplishes two valuable goals. First, it enables us to sort out the very different types of activity for which American communists were prosecuted on the one hand, and in which we now know they engaged on the other. Although the Venona documents in particular indisputably establish that a certain percentage of American communists engaged in espionage, to rely on those revelations in order to justify many of the prosecutions of American communists during the early years of the cold war amounts to a constitutional non sequitur. Anticommunist historians completely ignore the simple fact that, with relatively limited exception/ both the government prosecutions and private blacklistings of American communists had absolutely nothing to do with the clearly illegal espionage revealed by the Venona documents. Rather, they were premised on communists' organizational activities allegedly designed to facilitate advocacy of the attempted overthrow of the American government. From the perspective of the theory of free expression, there is all the difference in the world between the two forms of activity. Espionage-the clandestine transfer of classified or otherwise secret governmental information to agents of a foreign power-is arguably not properly classified as "speech" at all. Even if it is technically classifiable as expression, espionage has little impact on the values traditionally thought to be fostered by the First Amendment guarantee of free expression. Unlawful advocacy, in contrast, inherently concerns the expression of ideas and the attempt to persuade willing listeners to take action. To be sure, protecting unlawful advocacy is by no means free from constitutional controversy. The fact remains however, that espionage does not even arguably implicate the First Amendment's guarantee of free expression, whereas unlawful advocacy, at least in certain contexts, quite clearly does. That many American communists could properly have been prosecut,~d for unprotected acts of espionage does not logically imply that their wholly unrelated protected expressive activity could also be constitutionally punished. It is this vitally important point that appears to have been

Unlawful Advocacy and Free Speech

lost on historians of the McCarthy era-on both sides of the argumentwho have recently renewed the vigorous debate over the propriety of the treatment received by American communists during the cold war at the hands of both governmental and private institutions. Viewing the early cold war era through the lens of First Amendment theory establishes that in different senses, both the liberal and anticommunist historians have been right all along. The anticommunists are correct in their assertion that in important ways the Communist Party fundamentally differed from the normal political party and, through the conduct and facilitation of espionage, presented a real threat to the nation's security. Yet despite this fact, the liberals are clearly correct in their allegations that during the period in question the American government was responsible for wholly unjustified political repression of an unpopular ideology, in a manner ominously reminiscent of a totalitarian regime. Although the revelations of the Comintern and Venona documents tend to validate the conservatives' allegation, what has been lost in the recent tumultuous scholarly exchange among historians is that nothing in these revelations in any way undermines the accuracy of much of the liberals' criticism of the government's treatment of American communists. From another perspective, viewing the Venona revelations through the lens of the First Amendment has extremely valuable implications for the understanding of the theory of free expression as a general matter. To this point, there has existed a good deal of both doctrinal and scholarly confusion about the extent to which the First Amendment should be construed to protect the advocacy of unlawful conduct. The most recent controlling decision of the Supreme Court, decided more than thirty-five years ago, was a per curiam opinion whose brevity was exceeded only by its mystery. 8 Although respected constitutional scholars have long debated the issue of unlawful advocacy protection, 9 in important ways each of the existing scholarly theories is seriously flawed. 10 It would therefore not be an overstatement to suggest that at the present time, First Amendment jurisprudence on the subject of unlawful advocacy is in a state of flux. Purely as a matter of intellectual coherence, the prevalence of such doctrinal and conceptual confusion on an issue so fundamental to the continued vitality of American democracy is troublesome, to say the least. These constitutional difficulties are rendered even more compelling, however, by the fact that numerous important issues concerning the extent to which unlawful advocacy is constitutionally insulated have arisen in recent years. They have appeared in cases involving suits against the publisher of a hit man's how-to manual,H against pro-life groups providing information about and applauding violence against abortion

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providers, 12 against the owners of Internet Web sites explaining how to prepare or obtain illegal drugs 13 or advancing terrorism, 14 and against individuals who seek to inform the public on how to cheat on one's taxes. 15 That the thinking of both cold war historians and free speech scholars appears to be in such a state of flux about their respective subjects may not be simply an unfortunate coincidence. Historians seem to be unaware of the important implications of foundational free speech theory for the proper assessment of the treatment received by American communists during the cold war. But so too have free speech scholars failed to provide sufficient attention to the relevance of what transpired during that troubled period in American history to the proper structure of First Amendment theory and doctrine. My goal here is to fuse these two very separate modes of intellectual inquiry in order to dramatically reshape the standard views of both. My analysis will demonstrate how detailed scrutiny of both the political and judicial histories of the treatment received by American communislts underscores the unsatisfactory nature of existing unlawful advocacy doctrine and theory. The analysis reveals that none of the currently available doctrinal and conceptual approaches to this controversial issue, standing alone, provides an adequate resolution of the competing interests in free expression and national security. 16 It also reveals that in most contexts, society's interest in avoiding violence or criminal conduct may be satisfied without infringing the fundamental principles of free speech protection. The most important insight to be derived from this combined constitutional-historical inquiry is the proposal of a dramatic revision in modern unlawful advocacy regulation. The best solution to the unlawful advocacy conundrum, I believe, is found in an approach that selectively synthesizes elements of several of the previously proffered scholarly theories of unlawful advocacy regulation, to form a radically different conceptual and doctrinal approach to the unlawful advocacy problem. Scholars and jurists have, over the years, disputed which one of four fundamental approaches to unlawful advocacy regulation provides the proper foundation for determining the level of First Amendment protection to be given unlawful advocacy: (r) "definitional absolutism," which unwaveringly protects all activity that is found to be included within the definition of "speech," as opposed to nonexpressive conduct 17; (2) "categorical balancing," which balances competing interests in an a priori manner, by determining specified categories of expressive activity to be protected or unprotected before the utterance of any challenged oppression18; (3) "deferential balancing," under which a reviewing court will generally defer to legislative or executive determinations that expression advocating unlawful conduct be regulated, suppressed or punished 19 ; and

Unlawful Advocacy and Free Speech (4) "speech-protective balancing," which-like the third model-seeks to balance competing interests in maintaining free and open expression on the one hand and in assuring security and preventing violence on the other hand, but (unlike the third model) does so with a strong presumption in favor of the constitutional protection of speech. 2 For a variety of reasons, none of these approaches, standing alone, has satisfactorily resolved all of the constitutional and social difficulties inherent in unlawful advocacy regulation, on either conceptual or pragmatic levels. 21 Yet to date, free speech scholars have uniformly advocated one or another of these monolithic approaches for the resolution of unlawful advocacy disputes in a mutually exclusive manner, regardless of the context in which that issue has arisen. 22 This is likely because different theorists have adopted their models largely as outgrowths of their broader theories of First Amendment interpretation. If one chooses an interpretive model of the First Amendment on the basis of one's general mode of textual construction or constitutional theory, selecting different interpretive models for different factual contexts would be unacceptable. Moreover, scholars who have settled on one model of unlawful advocacy regulation appear unwilling or unable to accept the possibility that alternative approaches to the unlawful advocacy problem might be preferable in different factual settings. Thus, it is not surprising that no jurist or commentator to this point has recognized that different elements of the individual models may be selectively synthesized in order to draw upon the strongest aspects of each, and then applied in different contexts. It is adoption of just such a selective approach that I advocate here. On the basis of insights derived from a detailed examination of the free speech issues that grow out of the cold war treatment of American communists, I urge use of what I call a "selective categorization model" of unlawful advocacy protection. This approach selectively uses either the definitional model, the categorical balancing model, or the speech-protective balancing model, depending upon the specific context in which the unlawful advocacy regulation issue has arisen. 23 A choice is made in the individual case among the various interpretive models, not out of a belief in some broader hermeneutical or epistemological theory but rather on the basis of a pragmatic attempt to tailor First Amendment interpretation to the unique needs of specific situations. The selective categorization model advocated here measures First Amendment protection for what could be called "confined" or "street corner" incidents-that is, cases in which the speech and the harm are physically and temporally tied closely, and usually in which the harm, if any, has already resulted-by means of a case-by-case, speech-protective balancing model. Such an approach is akin to a highly speech-protective

°

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version of the venerable "clear and present danger" test. The selective categorization model, however, extends absolute constitutional protection to all other expression that advocates unlawful conduct. Government's interest in preserving security in such cases would be protected by means of a flexible but nevertheless disciplined common sense dichotomy that separates protected expression from unprotected conduct. In certain instances, what superficially or technically appears to be expression will be so intertwined with unprotected conduct as to lose its expressive character-for example, cases involving blackmail, espionage, or fraud. Indeed, one may highlight the contour of this dichotomy, as well as the way in which it differs from protected pure advocacy, by detailed examination of the Venona decrypts and their impact on the historical debate over American communism during the cold war. In addition, speech that is directly facilitative of and intertwined with ongoing illegal acts would be deemed unprotected speech-acts. Finally, under the selective categorization model speech that conveys otherwise publically unattainable information that can be shown to make possible or facilitate the proximate commission of crime would be measured under an ad hoc, multifactor test that recognizes the unique aspects of this form of expression. 24 The selective categorization model is designed to bring some level of structural coherence and predictability to the area of unlawful advocacy regulation. It is only by understanding how both the values and dangers of expression are impacted by the context in which the expression is ma.de that the proper balance between security and freedom may be struck. It might be responded that by applying completely different doctrinal approaches to different factual circumstances, the selective categorization model would actually increase confusion. But because no single model provides an intellectually coherent and pragmatically satisfying solution to the unlawful advocacy problem, often courts and commentators have implicitly altered their approaches to meet the unique needs of individual cases. The result has been complete confusion. Candid recognition of both the very different contexts in which the problem of unlawful advocacy regulation arises and the need to use a variety of categorical approaches to deal with these very different situations would undoubtedly bring a refreshing level of openness and predictability never before seen in unlawful advocacy scholarship or jurisprudence. Admittedly, this approach represents something of a conceptual mix and match and therefore may be susceptible to criticism for a lack of intellectual coherence. But in a certain sense, that is exactly the goal of the analysis. The free speech model advocated here represents a pragmatically grounded approach, designed to protect free speech interests as much as reasonably possible without impractically ignoring government's

Unlawful Advocacy and Free Speech

legitimate interest in protecting physical safety and assuring national security. Because of the unique aspects of the different contexts in which unlawful advocacy is uttered, it is only by applying several of the preexisting models selectively that one can properly strike that balance. At the same time, the approach seeks to avoid subjecting the process of unlawful advocacy regulation to the ideological manipulation and individualized abuse with which it was overwhelmingly plagued during the cold war period by structuring the controlling models in an ex ante categorical fashion. 25 It might be suggested that the selective categorization model still leaves too much room for manipulation, because it requires the application to individual cases of several distinctions that on occasion may not be obvious in their applications. The point admittedly has some force. The determination of whether expression is persuasive as opposed to coercive, or whether particular activity is appropriately characterized as expressive or nonexpressive, on occasion may be a difficult one to make. Nevertheless, the room left for case-by-case manipulation under the selective categorization model is still significantly smaller than that to which most or all of the preexisting models give rise. Under the terms of the selective categorization model, there are clearly defined conceptual marking points that establish the categorical distinctions to be applied. In any event, there would appear to be no realistic alternative: a rigid, all-encompassing absolutist-definitional model is simply too clumsy and unrealistic a device to strike the proper a priori balance between important competing interests. The first section of this chapter describes the historical debate that provides the springboard for the constitutional analysis that follows. It will discuss the nature of the actions taken by members of the American Communist Party before the cold war, as revealed in the Comintern documents and Venona decrypts, as well as the American government's regulatory response to the actions of American communists. This section concludes that although the recent revelations provide a dramatically altered picture of American communists and their actions, those revelations fail to alter the fundamentally problematic-and often unconstitutional-nature of the government's treatment of American communists. It concludes that despite the apparently widespread illegal and constitutionally unprotected activities of many American communists, the primary thrust of the regulatory response to internal communism during the cold war period represented more an attempt to stifle political dissent than to protect against the actual illegal activities taking place, just as liberal historia~s consistently maintained long before the revelations of the Venona documents. 26 The revelations of the Comintern and Venona doc-

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uments, then, for the most part should be deemed to have little impact on his:tory's proper judgment concerning the propriety and constitutionality of the actions of the American government during that period. This is so even though, purely as a matter of historical perspective, those revelations may well justify a dramatically altered historical view of the American communists who were the objects of those actions. The section further concludes that the Supreme Court's response to what were unambiguous abuses of free expression was hopelessly inadequate to protect the fundamental interests guaranteed by the First Amendment right of free expression. This critical assessment of the Supreme Court's cold war First Amendment decisions will come as no surprise to most scholars of free expression, because numerous legal scholars have long criticized the Supreme Court's constitutional failures during the period. 27 Two vitally important points that are appropriately gleaned from the Court's decisions of the period, however, appear to have either been ignored or unrecognized, even by most of the Court's scholarly critics. First, careful and detailed historical analysis of the Court's cold war free speech decisions makes clear that no single model of unlawful advocacy regulation could likely have effectively avoided the wholly unjustified governmental attacks on free expression while at the same time affording government sufficient ability to protect the security of society and its citizens. Second, the only viable means of assuring both results during the cold war era would have been to selectively synthesize several different models of unlawful advocacy protection in carefully delineated categories of regulatory contexts. 28 The second section therefore explores the doctrinal and scholarly status of unlawful advocacy regulation as a general matter. In doing so, it describes the available models of constitutional protection that have been either suggested or adopted by the Court. 29 The final section describes what I deem to be the appropriate response to these insights: creation of the "selective categorization" approach to the constitutional protection of unlawful advocacy. It details the alternative doctrinal directives of the model and explains how one is to determine the context in which each directive is to apply. 30

Unlawful Advocacy and Free Speech

7I

AMERICAN COMMUNISTS, ESPIONAGE, AND THE COLD WAR

The Rise and Fall of the Communist Party of the United States of America

Although both the size of the membership and the level of enthusiasm varied dramatically during the period,31 no one denies that from the 1920s to the early r96os there existed an organized communist movement within the borders of United States. 32 This was true, even though during theses years America's relations with communist nations went from general mistrust to close-if somewhat uneasy-alliance to a state of outright political and military hostility. For the most part, the communist organization inside the United States was known as the Communist Party of the United States of America. 33 Historians have long debated the nature of the CPUSA's activities. So-called revisionist historians long contended that for the most part the CPUSA was not significantly different from any other political organization, and that the widespread fear of American communist espionage and sabotage during the 1940s and 19 sos was little more than a subterfuge, manufactured by conservatives as camouflage for what amounted to their suppression of unpopular political views. 34 The CPUSA was founded in the United States in September 1919, with a membership between 25,ooo and 4o,ooo largely foreign-born members.35 The party came under almost immediate governmental attack through enactment of "red flag" laws, as well as criminal syndicalism and anarchy and sedition laws. 36 Out of the resultant criminal prosecutions arose some of the early and best known First Amendment cases, including Gitlow v. New York3 7 and Whitney v. California. 38 At the federal level, authorities used the wartime sedition statute, repealed in 1921, and deportation laws as a weapon against American communists. The party's membership precipitously dropped, and many members went underground to avoid the official persecution. By the mid-r92os, the party had renamed itself and was putting candidates on ballots in thirty-four states, with little result. 39 The CPUSA adopted that title in 1929, but the party's effectiveness remained limited, in part because of internal factional difficulties. 40 The onset of the Great Depression in the r 9 3os proved to be a boon to the party, however, with membership climbing to 3o,ooo by mid-1935. 41 In 1935, the party, at the direction of the Comintern (the Soviet organization that

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supervised the work of all communist parties),42 attempted to merge into mainstream politics and began a program of aggressive antifascism through support of President Roosevelt. 43 Membership surged to nearly 1oo,ooo by 1939 as a result of this reduction in the party's extremism. However, the Nazi-Soviet nonaggression pact later that year offended much of the rank and file and dramatically reduced party membership. 44 As a consequence of resumed state criminal prosecutions and more intense scrutiny of the party's activities by the FBI, membership declined even further. 45 The Pre- and Post-Comintern and Venona Perceptions

Although the traditional historical interpretation of the American communist movement "saw America's constitutional order as deserving the loyalty and support of its citizens, and attacked American communists for their subordination to a hostile foreign power," 46 under the so-called revisionist historical view of the McCarthy era American communism was widely viewed in a more benign mannerY Revisionists believed that American communists presented no significant threat to the nation, and that at least much of the nation's strongly negative reaction toward them derived from nothing more than ideological hostility. 48 For many years, the revisionist view dominated the scholarly world. The Venona and Comintern documents, made available over a five-year period starting in the early 1990s, dramatically altered the essence of this historical debate. The dramatic revelations of the Comintern documents in 1991 and the Venona documents in 1995 altered the previously controlling historical perceptions about the party. The Comintern, or Communist International, had been established in 1919 as an international coordinating center for communist parties around the world. It was headquartered in Moscow and financed by the Soviet Union. 49 With the end of the Soviet Union in 1991, the new Russian government, anxious to expose the misdeeds of the previous communist regimes, opened the Comintern's files to selected non-Russian scholars. According to those scholars, the documents reveal that the CPUSA "had extraordinary and unprecedented ties to the ruling political party in a foreign power." 50 Although "frequently CPUSA leaders made the tactical decisions, given their familiarity with local conditions," it was always understood "that the ultimate judge of the proper tactics and strategy was the Communist lnternational." 51 This does not necessarily mean that all members of the American Communist Party served as slaves to the Soviet Union. Indeed, as already noted, many chose to leave the party upon learning of the

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Nazi-Soviet pact in 1941. But it now appears clear that, at the very least, the so-called cadres-or members of the elite corps-of the Communist Party were firmly under the control of the Soviet Union, and that the Soviet Union funded the party's endeavors. Neither the arguments nor the evidence to support the claim of Soviet control were completely new at the time of the Comintern documents' revelations. Before the opening of the Comintern's files, the strongest evidence traditionally relied upon to demonstrate Soviet control of the American Communist Party was the so-called Duclos letter. The letter, authored by the French communist Jacques Duclos and published in his party's theoretical journal in April r 94 5, heavily criticized the policies of the American party head, Earl Browder. The letter contained information that could only have been obtained from Moscow. The party's leaders interpreted the article as an indication that Moscow disapproved of Browder and his policies and soon replaced him with the more radical William Foster. 52 But the Duclos letter, standing alone, had never been universally accepted among historians as conclusive proof that the American party was under the all but total control of the Soviet Union. The revelations contained in the Comintern documents, detailed meticulously by scholars Haynes, Klehr, and Anderson, made clear that "no CPUSA leader who was uneasy with Soviet guidance could survive." 53 Purely as a historical matter, the revelations of the Comintern documents were certainly significant. They did a great deal to undermine the view of the CPUSA as nothing more than simply another political party. The information is thus of potentially enormous importance on purely moral or political levels. On a constitutional level, however, the documents' impact is far less clear. If CPUSA members took positions ordained in Moscow, it was presumably still their voluntary choice to do so. In this sense, arguably their behavior differed little from that of a variety of American ethnic groups who choose blindly to support the positions of their native land. To be sure, such blind adherence to policies dictated by a monstrous totalitarian state is deserving of significant moral condemnation. But if the First Amendment is not to be deprived of real meaning, government may not be permitted to suppress expression solely on the grounds that it takes positions widely deemed immoral. 54 Far more troubling than the Comintern documents were the revelations contained in the Venona documents. The Venona project was undertaken in 1943 because American military intelligence feared that Stalin was planning a separate peace with Hitler. Officials therefore grouped together the Army's elite code breakers in an effort to decipher encoded Soviet diplomatic cablegrams. Breaking the Soviet code, however, proved far more difficult than expected. By the time that the first

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messages were decoded in 1946, the project's original strategic goal had long since become moot. What they learned, however, was of equal, if not far greater, importance. Stunned American intelligence officials learned that the Soviet Union, with the assistance of the CPUSA, had infiltrated America's atomic bomb project and had operated far-reaching and intensive espionage operations in the United States. 55 According to the leading Venona historians, Haynes and Klehr, "[b]y 1948 the accumulating evidence from other decoded Venona cables showed that the Soviets had recruited spies in virtually every major American government agency of military or diplomatic importance. American authorities learned that since 1942 the United States had been the target of a Soviet espionage onslaught involving dozens of professional Soviet intelligence officers and hundreds of Americans, many of whom were members of the American Communist party." 56 American communists had either passed on classified or sensitive information to Soviet agents or facilitated the conduct of espionage by those agents through the falsification of passports. The decoded messages also implicated a surprisingly large number of high-ranking U.S. government officials, who apparently maintained secret relationships with Soviet intelligence agents and had used these connections to pass extremely sensitive information to the Soviet Union. 57 American communist agents passed military secrets, nuclear secrets, and confidential American negotiating strategy to the Soviets. 58 Even the leading liberal historian, Ellen Schrecker, concedes that "[i]t is clear that some genuinely damaging espionage did take place." 59 The Venona decrypts, combined with the Comintern documents, 60 reveal that there existed an active communist underground in the United States, composed of members of the CPUSA, who aided the Soviet intelligence services in many capacities. Under orders from the Comintern, American communists organized into illegal departments, which were assigned tasks such as protecting the security of the party, ensuring that the party could continue to function even in the face of periodic governmental oppression, and infiltrating other organizations for various political purposes. 61 Although these illegal departments were not created for the express purpose of aiding Soviet intelligence, their capabilities and secrecy meant that they could be of significant value to the Soviets on those occasions when such assistance was deemed appropriate. 62 The secret apparatus was established in the 1920s, but in the 1930s the Comintern intervened to assist in revitalizing its capabilities by providing new leadership in the form of a veteran European communist, J. Peters. 63 Under his direction, the party prepared itself to operate extensively underground, purchasing printing presses that were to remain se-

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creted away throughout the country, while at the same time taking steps to ensure that internal party security was tightened. 64 In many of the prosecutions brought against American communists, the courts frequently pointed to the secret and closed nature of the CPUSA. It appears now that much of this activity was the result of justifiable fear of governmental persecution or harassment by private political enemies. However, the secret apparatus did not limit its actions to such preservationist activities. Part of its responsibilities included maintaining communication between the party and secret party members who served in relatively high capacities in the federal government. These groups were ultimately to provide a tremendous resource for Soviet intelligence, but initially this was not the only reason for the secrecy of their affiliation. Numerous communists had been hired by New Deal agencies, even though federal law prohibited partisan activities by government employees and open membership in the party would undoubtedly have brought about immediate discharge. Much of this activity was later revealed when, in 1948, ex-communist Whittaker Chambers testified concerning the network of party members with whom he had been involved in the 1930s. Because of the work of historians in bringing the previously secret documents to the public's attention, a picture has slowly emerged of a large underground communist network operating inside Washington during the 1930s and early 1940s, divided into small units that met to discuss party literature, pay dues, and in some cases pass secrets to the Soviet intelligence agencies. 65 Throughout much of the 1930s, the secret apparatus procured false American passports that were subsequently used by American communists traveling abroad, as well as by the Soviet intelligence agents in gaining entry to the United States. 66 In 1939, after numerous American passports had been found on Soviet intelligence officers and CPUSA members associated with them, the Justice Department brought a number of prosecutions for passport fraud. It succeeded in convicting Earl Browder, then head of the CPUSA. He subsequently served fourteen months in prison before his sentence was commuted by President Roosevelt as a goodwill gesture toward Stalin. 67 The CPUSA maintained communication with the Soviet Union throughout World War II through the use of diplomatic pouches, shortwave radio and communiques carried by sailors. The CPUSA also provided recruits to Soviet intelligence for overseas operations, including personnel for clandestine activities in Europe during the war. 68 Perhaps most troubling were the Venona revelations indicating that the party's secret apparatus managed a number of genuine espionage rings. The most successful of these was supervised by Jacob Golos and Elizabeth Bentley.69 During its duration, the ring passed information to Soviet intelli-

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gence from a number of sources within the Office of Strategic Services (predecessor to the CIA), a source within the State Department, a British intelligence officer, a source within the Board of Economic Warfare and its successor agency, and two sources within the Office of the Coordinator of Inter-American Affairs, among others. Other networks also coordinated by Elizabeth Bentley included officials on the War Production Board, on the staffs of Senate Committees, in the Treasury Department, in the Army Air Force, and even in the White House itself. 70 Although the extent of the espionage conducted is not totally clear, there is little doubt that extensive networks of CPUSA members existed and operated within the federal government, passing classified information through the secret apparatus of the party to Soviet authorities. Other networks collected scientific and technical information, including military and industrial secrets. At least until the mid 1940s, when the Soviets came to view the undisciplined nature of the party as a threat, the party proved to be a valuable asset for Soviet intelligence. It is a fair inference from the Venona documents (many of which to this day remain encoded) that the Americans who were involved, directly or indirectly, in Soviet espionage were members of the CPUSA's secret apparatus.71 However, it does not necessarily follow, either as an empirical or logical matter, that most American communists actually engaged in spying. Although highly respected anticommunist commentators have asserted-without any conclusive support-that "any American Communist would have been proud to be chosen to spy for the Soviet Union," they nevertheless concede that "only a small number of Party members had the jobs or other qualifications that the Soviets needed." 72 The fact remains, however, that many leaders of the CPUSA were immersed in espionage and espionage-related activities.73 It is clear, then, that the revelations of the Venona documents in 1995 presented an insurmountable challenge to the established revisionist scholarly view that the internal communist danger was nothing more than a myth of the right wing, created as an excuse to suppress the nation's extreme left wing. Certain revisionist historians have nevertheless questioned both Venona's import and accuracy. Some have suggested that the documents are simply a fraud, part of a government conspiracy to condemn American communists of the period.74 No supporting evidence has been produced, however. Moreover, anticommunist historians Haynes and Klehr have effectively challenged the logic of this argument. "Why," they ask, "would the United States government launch a massive forgery operation in 1943, producing at enormous cost documents that falsely implicated hundreds of Americans as spies, and then never use them? If it was part of a government conspiracy to frame innocent people, why not use the

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documents in court?" 75 It is possible, one might suppose, that the documents were forged not in the 1940s, when they were supposed to have been intercepted and decoded, but rather in the 1990s, when they were revealed. But such a forgery, at a time that neither the American Communist Party nor the Soviet Union existed in any meaningful way, would be even more puzzling. In any event, it appears that the revelations of Venona have now been corroborated by significant amounts of independent evidence. 76 Arguably more plausible is the suggestion that the information contained in the coded cables forwarded by Soviet agents in the United States back to Moscow was made up of nothing more than exaggerations, conveyed simply to curry favor with the agents' superiors. However, there appears to be no evidentiary support for such a claim. Thus, those who make this claim have failed to meet the evidentiary burden of production that reasonably must accompany any such assertion. In any event, it would seem to have been a highly risky strategy for a secret Soviet agent to pass on unreliably grandiose information to superiors. Finally, historians who have largely been unmoved by the Venona revelations have suggested that even if true, the information about the activities of American communists revealed in those documents should not be deemed all that condemning. Schrecker, for example, argues that "[u]nlike Soviet agents later in the cold war, the men and women who gave information to Moscow in the 1930s and 1940s did so for political, not pecuniary, reasons. They were already committed to Communism and they viewed what they were doing as their contribution to the cause." 77 Moreover, Schrecker defends the patriotism of the American spies: "[T]hey thought they were 'building ... a better world for the masses,' not betraying their country." 78 Finally, she notes that "most of their espionage took place during World War II, when the United States and the Soviet Union were on the same side. These people were not, therefore, spying for an enemy. " 79 One may reasonably doubt the moral force of these defenses of individuals who betrayed the trust of both their official positions and their nation and in doing so often seriously endangered the nation's well-being. It does not necessarily follow, however, that by engaging in espionage-related activities these individuals have waived all of their constitutional rights in wholly unrelated contexts. To be sure, for reasons to be explained, neither as a matter of First Amendment theory nor doctrine does an individual possess a constitutional right to engage in espionage. 80 But for modern anticommunist scholars to assume-as many have-that because of the revelations of Venona all of the political suppression imposed by government during the McCarthy era is now vindicated, both

Unlawful Advocacy and Free Speech morally and constitutionally, is to ignore vitally important constitutional distinctions among the government's actions during that period. During the McCarthy era, the federal government did bring several prosecutions for espionage and espionage-related activities. For example, Judith Coplon, a political analyst in the Foreign Agents Registrations section of the Justice Department with access to FBI files, was arrested as she was about to pass secret information to a Soviet agent. 81 Alger Hiss, although never prosecuted for espionage because of statute of limitations difficulties, was prosecuted and convicted for espionage-related perjury. 82 In the best-known prosecutions of the period, Julius and Ethel Rosenberg were tried, convicted, and executed for their involvement in the passing of atomic secrets to the Soviets. 83 There were several others, but for the most part, the prosecutions of American communists-the prosecutions that effectively marked the party's demise-were for behavior very different from espionage. A detailed examination of these prosecutions demonstrates why, as a matter of First Amendment theory, many of these prosecutions were both misguided and constitutionally dubious and remain so, despite the often startling and troubling revelations of the Venona documents. The Act-Response Dissonance: Critiquing the Historical Debate from the Perspective of Free Speech Theory Few go so far as to fully endorse the often extreme actions of Senator McCarthy. However, modern anticommunist commentators have pointed to this new evidence of CPUSA wrongdoing to justify the United States government's prosecutions of communist leaders. 84 As already noted, liberal historians have responded by attempting to morally justify, or at least rationalize, American communist behavior. 85 But as I have attempted to make clear throughout these pages, both sides have largely missed the key point. The liberal argument is simultaneously problematic and-at least for purposes of condemning most governmental treatment of American communists-largely unnecessary. It is extremely difficult to morally rationalize the behavior of those who betrayed their nation. But when one adds the perspective of free speech theory, it becomes unnecessary to rationalize the morality of the behavior for one to condemn the actions of the American government during the era. The simple fact is that during the McCarthy era, there existed a logical disconnect between act and response on the part of the American government. The communists, we now know, engaged in numerous acts of espionage and facilitation of espionage. Yet government sought to punish

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them, for the most part, 86 not for espionage but for conspiring to teach the advocacy of violent overthrow-behavior that is far different from the espionage in which we now know they engaged. Viewed from the perspective of First Amendment theory, this is by no means a trivial or technical distinction. Advocacy involves an effort to persuade free-willed individuals to act. Government seeks to suppress advocacy when-and only when-it does not sufficiently trust free-willed listeners to make rational choices on the basis of free and open debate. Such governmental mistrust of the citizenry inherently conflicts with the premises of free expression and the democratic system of which it is a part. 87 It should be tolerated, if at all, in only the most extreme circumstances, where the danger of serious and illegal harm is both substantial and immediate. Espionage, on the other hand, involves the clandestine conveyance of government secrets to foreign powers. Espionage laws do not inherently interfere with the persuasional process that lies at the core of democracy. At the same time, such laws work to preserve the nation's security. Absolutely nothing in either the Venona or Comintern revelations alters these fundamental precepts. One key point must be kept in mind: to engage in espionage is not the same as to engage in the planning of attempted overthrow. Pointing to the commission of espionage as a justification for the criminal prosecutions for conspiracy to teach or advocate attempted overthrow would effectively be to argue that speech loses its protection if it is uttered by an individual who has been involved in wholly unrelated criminal activity. But an individual does not surrender his free speech rights because he commits a crime unrelated to his expression. The suppression of speech therefore cannot be justified on the grounds that the speaker has engaged in other illegal acts. This is not to say that these criminal acts would be irrelevant for purposes of all speechrelated prosecutions. If those in the leadership of the CPUSA used words as an element in their commission of espionage, such speech of course receives no constitutional protection. But the fact remains that the government never alleged such activity in the Smith Act prosecutions of Communist Party leaders. One might respond that although advocacy and espionage may not be identical, a conspiracy to attempt violent overthrow of the government hardly represents less of a threat to national security than does espionage. But although this point, under certain circumstances, may be true, it is important to understand exactly what the communist defendants were and were not charged with, and what the government's evidence actually demonstrated. The federal government did not prosecute American communist leaders for actually attempting overthrow, nor for conspiracy to attempt overthrow. The prosecution, rather, was for conspiracy to or-

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ganize for the purpose of teaching or advocating overthrow. As the following discussion will demonstrate, absolutely no evidence was introduced at the trials to show that the party or its leadership had made concrete plans for conducting an attempted overthrow, either at the time or in the future. 88 At most, the communist leaders were prosecuted for organizing a group ideologically committed to the idea of termination of the American capitalist system at some wholly undefined future point. 89 As a practical matter, then, the prosecutions were brought to punish commitment to ideas, because government found those ideas to be offensive. Nothing could be more inconsistent with the fundamental premises of democratic theory and free expression. A detailed examination of the government's prosecution of the highest level American communist leadership gives rise to two important insights. First, it is clear that at all levels of the case-from the filing of the prosecution to the conduct of the trial to the jury's verdict to the appellate and Supreme Court decisions-the operative principle was not the perception of any meaningful threat of attempted violent overthrow, or even of serious advocacy of such an attempt. This is so, even though the prosecutions were purportedly brought for this very reason. Moreover, nothing in the Comintern or Venona revelations alters this fact. Thus, it is reasonable to infer that, as pre-Venona liberal historians long contended, the motivating force driving the prosecution was ideological hostility, rather than any reasonable concern for national security. Second, close examination of the prosecutions of the communist leaders reveals th21t even a speech-protective form of the "clear and present danger" test-which to this point I have myself long championed as the best protector of free expression90-provides an insufficient guarantee that application of the test in the individual case can be insulated from contamination by invidious ideological hostility. A Closer Look at the Cold War "Clear and Present Danger" Cases Dennis vs. United States The Smith Act, passed in 1940, was to bec:ome the primary tool that the government used to prosecute the leadership of the American Communist Party. In particular, the government relied on sections 2 and 3 of the act, which provided that it was unlawful for any person to knowingly or willfully advocate or teach the duty or necessity of overthrow of the government of the United States, or to organize any group dedicated to the teaching or advocacy of such acts, or to conspire to those ends. 91 Constitutional scholars have long questioned the strategic advisability of the Smith Act as a means of protect-

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ing internal security. 92 Thomas Emerson, for example, argued that the Smith Act was "an anachronism" at the time of its passage, because "[w]hatever the problems of internal security may have been in 1940, they did not arise from any public advocacy that the government be overthrown by force or violence. " 93 Although Emerson wrote some twenty-five years before the revelations of Venona, he appeared to anticipate and comprehend the fundamental distinction between advocacy on the one hand and espionage on the other-a distinction with enormous consequences for the scope of constitutional protection for American communist activities during the 1930s and 1940s. From a purely pragmatic perspective, Emerson argued, the Smith Act unwisely focuses on the deterrence and punishment of the advocacy of overthrow, although the real dangers at the time likely came in other forms. Nevertheless, the Smith Act was used to prosecute twelve senior members of the CPUSA, including William Foster, the party's national secretary, Eugene Dennis, the party's general secretary, and other members of the party's national leadership. The prosecution, which apparently was inspired by FBI director J. Edgar Hoover, 94 ultimately resulted in one of the most troubling free speech decisions ever handed down by the United States Supreme Court, Dennis v. United States. 95 On a purely political level, Dennis effectively sounded the death knell for the American Communist Party. On a constitutional level, the decision dramatically altered the law of unlawful advocacy regulation in ways that to this day have not been fully comprehended. The Dennis Trial The indictment against the Dennis defendants, handed down on July 20, 1948, charged them with conspiring with each other and with unknown persons to "organize as the Communist Party of the United States, a society, group, and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence, and knowingly and willfully to advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force." 96 Further, some defendants were charged with violation of the Smith Act's membership clause, 97 which at the time provided that "It shall be unlawful for any person ... to organize or help to organize any society, group or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence, or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof. " 98 In one sense, the very fact of the prosecution was puzzling. Attorney General (and later Supreme Court Justice) Tom Clark had publicly stated "that

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the Smith Act was an inadequate prosecutorial tool and one which the Department of Justice had no plans to use." 99 As already noted, however, it appears that it was J. Edgar Hoover's FBI that had spearheaded the drive for the prosecutions. 100 The FBI's purpose, it has been suggested, was to obtain "a precedent which would allow the arrest of large numbers of left-wingers in peacetime and masses of people in wartime. Once used against the Communist Party, the Smith Act would serve as a judicial mandate for the Bureau to act without any further legislative or executive authority. " 101 The subsequent trial, which lasted over nine months and produced a record exceeding r6,ooo pages, was characterized by the defendants' strategic decision to use a "labor defense." 102 CPUSA leaders believed that because all government was class government, it was impossible for them to receive a fair trial under the auspices of a bourgeois regime.l 03 It was therefore the party's strategy to rely on popular sentiment to free the defendants by mobilizing the working class to protest against the proceedings.104 Judge Harold Medina, who presided over the Dennis trial, came to believe that the strategy of the communist leaders was twofold. First, it was their intention and desire to spread communist propaganda at every possible opportunity. Second, they intended to disrupt the trial by any possible method available to them. This was probably a reasonably accurate paraphrase of the labor defense strategy of the CPUSA leaders. 105 Under this strategy, the defendants sought to put the entire capitalist system on trial in the courtroom. 106 The labor defense only exacerbated the already existing animosity that Judge Medina held toward the defendants. His hostility had developed even before trial. The labor defense started quickly, with communist sympathizers bombarding the White House, the attorney general, and the trial judge with telegrams and letters demanding that the communist leaders be freed, and organizing marches and rallies opposing the prosecutions.l07 Judge Medina was visited throughout the early weeks of the proceeding by delegations of communist sympathizers who sought to plead the defendants' case. 108 Judge Medina's stormy relationship with the defendants quickly became legendary. According to one authority, "[b ]y the time ... the trial was ready to begin on March 7, 1949, the Judge and the defense attorneys already were bitter antagonists. Medina expected difficulties in the courtroom and his attitude together with the defendants' determined effort to challenge the judicial system, may have precipitated conflict." 109 Medina had apparently learned that an earlier eight-month trial under the Smith Act of neofascists had ended in a mistrial because of the death of the presiding judge, seemingly caused by a heart attack induced by ex-

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haustion following endless courtroom disruptions by defense attorneys. He believed that defense attorneys would attempt similar tactics, and therefore "viewed any delay in the proceedings as a direct provocation and, perhaps, even a threat." 110 Medina apparently was so paranoid about communist "dirty tricks" that he consciously avoided making eye contact with visitors in the gallery, for fear that communist hypnotists would seek to manipulate him. 111 Defense lawyers began a series of delaying tactics, seeking to gain continuances on the basis of the illness of one of the defendants, William Z. Foster, the general secretary of the CPUSA. 112 After initially granting a two-month continuance, Medina refused to make further accommodation and ordered the trial to proceed without Foster, beginning on January 17, 1949. With the trial proceeding, the defense presented a challenge to the system by which the grand jurors who had indicted the defendants had been selected. This challenge continued until March 4, when Judge Medina ruled against the defendants and ordered the trial to proceed. 113 The government's legal strategy enabled it to avoid the need to present evidence concerning the specific activities of the individual defendants. Instead, the government reasoned that because the defendants had indisputably organized the Communist Party of the United States, following its predecessor's brief dissolution during World War II, 114 to obtain a conviction it needed to establish only that the Communist Party of the United States proceeded on the assumption that the change in America's governmental institutions necessary to bring about a truly socialist system must come through resort to violence. 115 The government planned to show that the communists taught that the victory of the proletariat would come at a time of national crisis, and the party would lead the proletariat in the violent attempted overthrow of the capitalist government.116 The most interesting aspect of the government's case was what it did not seek to establish. The government made no effort to prove that this attempted overthrow was in any sense imminent, or even in the concrete planning stages. It failed to introduce any evidence to show that anyone in the party had made even the slightest effort to prepare for any such attempt. For example, no evidence even purported to show that Communist Party officials had sought to buy weapons, to determine strategic points of attack, or to inform the membership how to implement the attempt. Moreover, the government made no effort to demonstrate that any of the individual defendants themselves had at any time directly advocated the violent overthrow of the government. In response to the government's opening remarks, Eugene Dennis, who had insisted on representing himself in accordance with the "labor defense" strategy,

Unlawful Advocacy and Free Speech accurately noted that the government had accused the defendants of neither overt acts nor direct advocacy of violent revolution.l 17 The government sought to demonstrate that the CPUSA had conspired to organize and teach the advocacy of overthrow by introducing into evidence various books, pamphlets, and articles. These included excerpts from Marx's The Communist Manifesto, Lenin's State and Revolution, Stalin's Fundamentals of Leninism, The History of the Communist Party o{ the Soviet Union (Bolsheviks), and The Program of the Communist International. The Communist Manifesto was first published in r848. The most recent work introduced into evidence by the government was the Pmgram of the Communist International, first published in 1928. 118 In the words of one historian, "[t]here could be no doubt what was on trial-the economic and political theories of Marx and Lenin were to be used to convict the communist leaders." 119 The government supported its documentary evidence with the testimony of various former communists and FBI informants. Its star witness was Louis F. Budenz, a former communist and former managing editor of the Daily Worker, the party's newspaper. He had left the party and later joined the faculty of Fordham University. 120 Prosecutors relied on Budenz to admit much of the prosecution's literary evidence and to testify as to its use as educational material within the party. 121 However, Budenz's most damaging testimony came when he was asked to explain the first sentence of the constitution of the CPUSA, which stated: "The Communist Party of the United States is the political party of the American working class, basing itself upon the principles of scientific socialism, Marxism-Leninism."122 Budenz proceeded to explain that scientific socialism appeared in the writings of Marx, Engels, Lenin, and Stalin, as interpreted by Lenin and Stalin. These interpretations, he explained, made clear that socialism could only come from "the violent shattering of the capitalist state, and the setting up of a dictatorship of the proletariat by force and violence in the place of that state. In the United States this would mean that the Communist Party of the United States is basically committed to the overthrow of the Government of the United States as set up by the Constitution of the United States." 123 Budenz followed this damning testimony with a discussion of communists' use of "Aesopian language," a political strategy that apparently originated with Lenin himself. In the preface to a late edition of one of his earliest works, Lenin discussed how, in order to circumvent czarist censorship, he had chosen to make political observations "with extreme caution by hints in that Aesopian Language-in that cursed Aesopian Language to which Czarism compelled all revolutionaries to have recourse whenever they took up their pens to write a 'legal work."'1 24 Budenz claimed that the CPUSA

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used this strategy in order to mask its true intentions and to avoid governmental suppression.l 25 Judge Medina asked him to explain a provision in the CPUSA constitution that provided that any Communist Party member who conspired to subvert or overthrow the American government could be expelled from the party. 126 Budenz responded that any language included in CPUSA materials disavowing the use of force or violence to overthrow the government was merely cover, designed to protect the party from suppression. One commentator notes that "[b]y equating the creed of the CPUSA with the violent overthrow of the government, while defining anything that tended to contradict this conclusion as a lie, Budenz had, if the jury believed him, sealed the fate of the [communist leaders]. " 127 The government's other witnesses testified about both the party's secrecy and the nature and substance of its educational and training operations.l28 Judge Medina refused to allow the defense to admit the entirety of the books on which the prosecution relied to demonstrate the violent nature of the communist ideology, on the grounds that to do so would enable the defendants to drag out the trial for propaganda purposes. 129 When the government rested, its entire case was grounded on dated philosophical treatises and isolated testimony that individual communists had preached the necessity of violent overthrow of the government in order to achieve a socialist revolution. 130 At the close of the prosecution's case, the defense moved for a directed verdict. 131 Defense counsel argued that the defendant's speech was of such an abstract nature that even evidence of clear and present danger would not permit it to be regulated, and that no such evidence had been presented by the government. 132 The defendants further argued that the government's assertion of a conspiracy to advocate overthrow at some point in the future was insufficient, because any danger arising out of such a conspiracy would necessarily be remote. 133 Judge Medina denied these motions three days later. 134 It was clear, however, that the prosecution had failed to put on the powerful case that most had expected. In April 1949, Robert Bendiner wrote in The Nation that "[w]hatever the legal technicalities of the case, the public in general, I think, will expect the prosecution to show a more concrete conspiracy to advocate overthrow of the government than the agreement to circulate and expound, through the party apparatus, certain books which may be found in almost any library. " 135 In this the prosecution completely failed. The New Republic noted that "the government has failed to make out the overwhelming case that many people anticipated before the trial began." 136 Rather than concentrate on rebutting the prosecution's weak case, the defense focused its efforts on propagandizing on behalf of the American

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Communist Party and attacking the capitalist system. 137 Throughout July and August, a parade of witnesses testified, seeking to espouse communist views on subjects such as race and working conditions, with the predictable result that Judge Medina would cut them off for propagandizing.138 Medina refused to permit communist historian Herbert Aptheker to provide expert testimony on the meaning of Marxism-Leninism and refused to permit one witness to answer questions substantially identical to those answered to such damning effect by Budenz during the case in chief. 139 The government continued to cross-examine defense witnesses by demanding names of other attendees at meetings and fellow travelers, a strategy which Judge Medina largely permitted. 140 The September reading of the deposition of William Foster provided one of the few reasoned and uneventful defenses of the party's activities. Foster contended that the government's evidence of communist advocacy of violent revolt was taken out of context and that it failed to take account of the drastic changes in the communist movement after the Seventh World Congress of the Co mintern of I 9 3 5, when the communist world had turned its attention to the threat of fascism. 141 Books dating from before I 9 3 5, therefore, were obsolete as evidence of communist philosophy. The defense also called to the stand the director of the New York Public Library, who admitted that the books on which the government had based its prosecution could be found in his library. 142 When the defense's case closed on September 2 3, it had done little more than to irritate both Judge Medina and the public and to present propaganda interrupted by courtroom mayhem. In charging the jury, Judge Medina advised that the defendants had a right to criticize the United States government. He noted, "[i]f the defendants did no more than pursue peaceful studies and discussion or teaching and advocacy in the realm of ideas, you must acquit them." 143 He continued: [I]t is not the abstract doctrine of overthrowing or destroying organized government by unlawful means which is denounced by [the Smith Act], but the teaching and advocacy of action for the accomplishment of that purpose, by language reasonably and ordinarily calculated to incite persons to such action. Accordingly, you cannot find the defendants or any of them guilty of the crime charged unless you are satisfied beyond a reasonable doubt that they conspired to organize a society, group and assembly of persons who teach and advocate the overthrow or destruction of the Government of the United States by force and violence, and to advocate and teach the duty and necessity of overthrowing or destroying the Government of the United States by force and violence with the intent that such teaching and advocacy be of a rule or principle of action and by language rea-

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sonably and ordinarily calculated to incite persons to such action, all with the intent to cause the overthrow or destruction of the Government of the United States by force and violence as speedily as circumstances would permit. 144 The defendants argued that in order to convict, the jury had to find that the teaching and advocacy had created a clear and present danger of forcible overthrow. However, Judge Medina refused, holding as a matter of law that if the jury found that the defendants had violated the statute, there necessarily existed a "sufficient danger of a substantive evil that Congress [had] a right to prevent to justify the application of the statute under the First Amendment." 145 Judge Medina reached this conclusion, even though throughout the trial no evidence had been introduced to show that any meaningful steps had been taken to prepare for violent overthrow, or indeed that such overthrow had been discussed in anything but the most abstract fashion. Despite this fact, Judge Medina took the core inquiry of the "clear and present danger" test out of the hands of the jury. The defendants' only hope, then, lay in the judge's admonition that abstract advocacy in the realm of ideas would not be sufficient to convict the defendants. This, however, was a narrow thread of hope, given the state of intense concern that existed in cold war America at the time. In that time and place, it would be hard to imagine a jury finding that a group of communists had engaged in "abstract" discussion of the necessity of violent overthrow. In less than a day, the jury found all defendants guilty-what one commentator has described as "a surprisingly short period of deliberation in view of the length of the trial and the complexity of the issues involved." 146 However, in light of both the trial judge's highly loaded instructions and the widespread fear of communism, the verdict itself was hardly surprising. The Second Circuit

Judge Learned Hand wrote the opinion for the Second Circuit, affirming the convictions. He explained that the record included abundant evidence to show that the defendants had engaged in "an extensive concerted action" to teach Marxism-Leninism. 147 This doctrine, Hand explained, involved the use of force and violence to obtain power from the ruling bourgeois and therefore exceeded mere advocacy of constitutional change, which he conceded would be protected by the First Amendment. 148 The defendants had contended that their teaching advocated the use of force only to retain power once the communists had lawfully obtained it. However, Hand rejected this contention, pointing to the "many passages

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in the pamphlets and books, published and disseminated by the defendants" that undercut this argument. Presumably, Hand was referring to the works of Marx, Engels, Stalin, and other communist thinkers that hadl formed the back bone of the government's case at trial. He also noted that the government had provided the testimony of witnesses confirming the teachings of the defendants. Thus in a single page, Hand dismissed any doubt or question about the evidentiary basis of the convictions. The court did not address the defendants' contentions that early works of Marxism were no longer valid statements of the present doctrines of the party. Nor did it address the manner in which the prosecution had introduced limited excerpts from various works, while the district court sharply curtailed many of the defense's attempts to provide philosophical context and background for the statements. In short, Hand summarily dismissed the question of evidentiary sufficiency in a trial that had lasted over nine months, without a single citation to an individual piece of evidence supporting conviction. Later in the opinion he defended the trial court's evidentiary rulings by explaining that much of the evidence offered by the defense that had been excluded was repetitive. However, he made no attempt to examine the substance of the evidence that was offered to determine the validity of the verdict. Perhaps Hand truly believed the evidence to be so overwhelming that no in-depth consideration was necessary, but if so, he failed to clarify the point. Viewed in hindsight, there seem to have been a number of grave questions as to whether any evidence of true advocacy of overthrow had been presented at trial. After all, there existed absolutely no basis on which a rea~>onable fact finder could have concluded that there had been a real pla111 for attempted overthrow. Moreover, it is difficult to imagine that even the most ardent communist would have thought that force of arms was a realistic means to achieve the desired goal of overthrowing the capitalistic system. As previously noted, there was certainly no evidentiary basis on which to believe that there had been any actual preparation for such an endeavor. It is hard to understand the casual nature of Hand's treatment of this question, except as a crude, knee-jerk expression of the conventional, generic view that communism posed a grave threat to the continued vitality of constitutional principles. But although it was clear that communist ideology itself was a threat to democratic ideals across the globe, it is far from clear that the CPUSA had taught the doctrine in a manner designed to culminate in violence. With the evidentiary challenges quickly dispatched, Hand turned to the core question-namely, whether the Smith Act had been properly construed by the lower court, and, more importantly, whether, as construed,

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the act was constitutional. Hand's treatment of the First Amendment began with an identification of what he saw as the critical task in cases such as Dennis: to separate instances of persuasive speech, which is protected, from speech which merely instigates a group to action and is therefore unprotected. 149 Hand concluded that the "clear and present danger" inquiry was "not a slogan or a shibboleth to be applied as though it carried its own meaning," but rather merely as a tool of analysis, designed to assist a court in determining which statements of persuasion mixed with instigation were to be protected. 150 Hand's analytical framework is characterized by a fundamental conceptual flaw that corrupted his approach to the facts of Dennis: the assumption that the concepts of instigation and persuasion are mutually exclusive. Justice Holmes's statement that "every idea is an incitement" clearly undermines Hand's attempted distinction between persuasive ideas on the one hand, and those which merely instigate on the other. The simple fact is that the very act of instigation is inherently an act of persuasion, and persuasion-if effective-may well instigate. There are many ways to persuade, and appeal to pure logic may be what Hand had in mind when he made reference to the concept, but an appeal to logic is far from the only or even most effective tool of persuasion. What Hand refers to as "instigation," then, may well be nothing more than provocative rhetoric or impassioned appeals to action, and both of these devices may possess inherent persuasive value. And in the context of classroom discussions, as had taken place in Dennis, it is hard to imagine that mere passion or rhetoric should be deemed sufficient to revoke a defendant's First Amendment protections. Applying his dramatically revised clear and present danger inquiry to the case at bar, Hand explained the facts that he believed struck the balance against the defense: "The American Communist Party, of which the defendants are the controlling spirits, is a highly articulated, well contrived, far spread organization, numbering thousands of adherents, rigidly and ruthlessly disciplined, many of whom are in fused with a passionate Utopian faith that is to redeem mankind .... The violent capture of all existing governments is one article of the creed of that faith, which abjures the possibility of success by lawful means." 151 Hand's rhetoric painted a far different view of the party from the one that had been developed at trial. Although the party was quite clearly a substantial organization, no evidence had been introduced to show that most of the adherents were "rigidly and ruthlessly disciplined." It was far from clear that the "violent capture of all existing governments" was a present or even future goal of the CPUSA. As already noted, no evidence was ever presented of a single step taken toward such a violent capture, be it the

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stockpiling of weapons, training of soldiers, or planning of attacks. Thus, even a conspiracy as vigorous as the one he described, Hand conceded, would not always give rise to a "present danger." However, in light of the world situation in 1948, when the indictment was handed down, he reasoned, "such a conspiracy creates a danger of the utmost gravity and of enough probability to justify its suppression." 152 Thus, Hand concluded, the convictions of the defendants did not violate their First Amendment rights. It was sufficient for his purposes that the jury had found that the defendants would have struck as soon as success seemed possible, and that the external world was in tumult. The Supreme Court

The Supreme Court granted certiorari, limited to the questions of whether the relevant portions of the Smith Act were unconstitutional because of indefiniteness or because of inconsistency with the protections of the First Amendment. 153 The Court expressly refused to examine the evidentiary sufficiency of the convictions, accepting without question the Court of Appeals' conclusion that defendants had been shown to advocate the overthrow of the government by force and violence. 154 Thus, in the most summary and conclusory fashion, the Supreme Court disposed of what quite probably should have been, for First Amendment purposes, the most important issues in the case: whether the organization formed by the defendants was actually committed, in anything more that the most abstract sense, to violent overthrow, and if so whether their activity actually presented a danger that was "clear and present" in any coherent sense of that phrase. With all evidentiary issues so cavalierly disposed of, Chief Justice Vinson's plurality opinion drew heavily on Judge Hand's Second Circuit opinion. Vinson began with a gloss on the "clear and present danger" test. In so doing, he provided a revised understanding of the concepts of both the phrase clear and present and the word danger. As to the former, he wrote: Obviously, the words cannot 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 is awaited. 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. 155

As to the latter, he explained that the relevant "danger" was not that of

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ultimate overthrow, but rather of the very fact of an attempt. Vinson reasoned that even an attempt would inevitably give rise to substantial harm. The implication of this reasoning is that the evidence need only establish the likelihood of an attempt-a presumably far easier burden than was required to establish actual overthow. 156 In this case, Chief Justice Vinson agreed with the trial court that the requisite danger was presented by the activities of the CPUSA. Pointing to the factors that Hand had found dispositive-the inherent nature of the party and world conditions-Vinson concluded that the danger requirement was satisfied. The reservation of the question of danger to the judge was also not error, Vinson explained; although it was the province of the jury to find that the elements of the statute had been violated, it was for the court to determine whether the First Amendment protected the speech. 157 In other words, Vinson agreed that the party posed a danger, and that the temporal proximity requirement of the test was satisfied by the jury's finding that the CPUSA would have attacked as soon as practicable. Vinson limited the somewhat absurd results that such an interpretation could lead to by pointing out that the act was directed at "advocacy, not discussion .... [because] Congress did not intend to eradicate the free discussion of political theories, to destroy the traditional rights of Americans to discuss and evaluate ideas without fear of governmental sanction." 158 Under Vinson's analysis, the "present" requirement effectively drops out of the analysis, because "as soon as practicable" is somehow remarkably transformed into the equivalent of "present," or at the very least satisfies Hand's requirement that the "gravity of the evil be discounted by its improbability." 159 No court, including the trial court, ever asked whether this time was likely ever to arrive, or indeed even whether the defendants believed it might come about. The notion that "as speedily as circumstances would permit" somehow satisfies the temporal proximity requirement amounts to nothing more than a complete rejection of the relevance of that prong of the test. As history has shown, circumstances never permitted, nor were they ever likely to, absent significantly more concrete action on the part of the CPUSA than had ever been demonstrated. This leaves only the danger requirement to protect the speaker, and, under Vinson's analysis, ultimately that provides no real defense. The finding of danger in Dennis was premised on four factors: ( r) the fact that communism was antithetical to the precepts of democracy, (2) the fact that defendants honestly believed in their cause, (3) the fact that they numbered in the thousands, and (4) the fact that their faith was shared by a substantial foreign power. No evidence had been introduced that violence had ever even been discussed as a possible course of action. Instead,

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the government pointed to the fact that defendants taught from booksmost of which had been written many years before the party had even been formed-that included calls to violent overthrow. There was no evidence that the defendants had stressed this aspect of communist philosophy, or that they had ever brought it outside the realm of abstract discussiOn. The distinction Vinson drew between advocacy and discussion makes little sense from the perspective of First Amendment theory. Under this dichotomy, so long as the ideas raised by a speaker are not actually held by him, they are constitutionally protected. But as soon as the speaker believes in them and expresses that belief, he somehow loses his constitutional right to utter them. The same words: "Marxist/Leninist theory commands the overthrow of the bourgeois by the proletariat through force if necessary" are to receive different levels of protection, depending upon whether they are spoken by a Eugene Dennis or a college professor in a course on communism. Yet because words may have a force or impact wholly apart from the speaker's intentions, it is just as conceivable that the neutral exposition of the ideas could lead to action as would their advocacy. Moreover, the anomalous impact of the advocacy-discussion dichotomy on the speaker should be recognized. Under this dichotomy, a speaker is punished solely for the normative belief underlying her words. With the "present danger" requirement already emasculated, any utterance of this kind by an individual who believed in the ideas he is espousing becomes vulnerable to governmental suppression. Justice Frankfurter's concurrence correctly recognized that "there is no divining rod by which we may locate 'advocacy.' Exposition of ideas readily merges into advocacy." 160 But although Frankfurter conceded that limits on the latter might result in chilling of the former, he nevertheless maintained that "there is an underlying validity in the distinction," refusing to reject it merely because it might have the effect of inhibiting protected speech. 161 Just what this underlying validity is, however, is unclear in Frankfurter's opinion. Demonstrating that a speaker was advocating violent overthrow would obviously satisfy an intent requirement. But the key point obviously lost on Frankfurter is that it is not at all clear that advocacy of violent overthrow is substantially more dangerous to government than mere exposition of that idea. Thus, any distinction between advocacy and discussion is meaningless, except to prove that the speaker intended that others act upon his words. The advocacy-discussion distinction has not helped identify anything about the weight of the interest in suppression. Frankfurter's answer in his Dennis concurrence is to defer to Congress, so long as Congress's finding is "reasonable." He would permit the legislature to balance the

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competing interests of security and free speech, and thus would effectively abdicate the judicial role of checking unconstitutional governmental excesses in cases. Justice Jackson's concurrence recognized the difficulties inherent in analyzing the facts of Dennis under the traditional "clear and present danger" test. It was a test developed for the context of a street corner, he reasoned, and not one to be applied to an organization dedicated to a given political philosophy: When the issue is criminality of a hot-headed speech on a street corner, or circulation of a few incendiary pamphlets, or parading by some zealots behind a red flag, or refusal of a handful of school children to salute our flag, it is not beyond the capacity of the judicial process to gather, comprehend, and weigh the necessary materials for decision whether it is a clear and present danger of substantive evil or a harmless letting off of steam. It is not a prophecy, for the danger in such cases has matured by the time of trial or it never was present. 162

In contrast, Jackson argued, application of the "clear and present danger" test to situations such as the activities of the CPUSA required courts to engage in "apprais[ing] imponderables," making predictions as to the danger posed by an activity based on factors like international conditions and national trends. 163 The need for such prediction would inevitably result in assessments of danger based on a judge's "own political predilections and nothing more." 164 The "clear and present danger" test, Jackson recognized, if applied properly would protect the Dennis defendants. But rather than consider this an acceptable outcome, Jackson rejected the applicability of the test at all in this context, concluding that permitting the CPUSA to organize outside the reach of the law would enable the government to regulate their behavior only after it was already too late. 165 Instead, Jackson proposed that the convictions should be viewed as nothing more than the punishment of a conspiracy. He argued that although "[c]ommunication is the essence of every conspiracy," the fact that speech is an integral part of a conspiracy to perform an illegal act will not extend First Amendment protections to the conspirators. 166 In other words, Jackson believed that when used as part of a conspiracy to act illegally, speech loses First Amendment protection. 167

Yates v. United States Six years after Dennis, the Supreme Court considered the government's prosecution of second-level Communist Party organizers under the Smith Act. In Yates v. United States, the petitioners appealed their convictions on a single count, charging them with

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violation of the act by conspiring to advocate and teach the duty of violent overthrow, and conspiring to organize the CPUSA, an organization that also advocated and taught such action. 168 The Supreme Court found that the charge of "organizing" the CPUSA violated the Smith Act's statute of limitations, and then turned to the question of whether the First Amendment protected the defendants on the charge of conspiring to teach and advocate violent overthrow. 169 Justice Harlan's majority opinion had to contend with the advocacydiscussion distinction originally raised in Chief Justice Vinson's plurality opinion in Dennis. The trial court had refused to require the jury to find that the defendants had engaged, not in advocacy of "a mere abstract doctrine of forcible overthrow, but of action to that end, by the use of language reasonably and ordinarily calculated to incite persons to such action." 170 The Court had to determine whether abstract advocacy, entered into with "evil intent" and with a firm belief in the doctrines espoused and a desire to see them realized, could provide the basis for liability absent any true effort by the speaker to instigate illegal acts.1 71 Justice Harlan's opinion attempted to bring order to the district court's understandable confusion over the Dennis dichotomy. The Court did so by recharacterizing the Dennis plurality's "advocacy-discussion" distinction as a modified distinction between "abstract advocacy" on the one hand and "advocacy directed at promoting unlawful action on the other." 172 As the Yates Court explained it, [T]he District Court appears to have been led astray by the holding in Dennis that advocacy of violent action to be taken at some future time was enough. It seems to have considered that, since "inciting" speech is usually thought of as something calculated to induce immediate action, and since Dennis held advocacy of action for future overthrow sufficient, this meant that advocacy, irrespective of its tendency to generate action, is punishable, provided only that it is uttered with a specific intent to accomplish overthrow. 173

Faced with what appears to have been a reasonable reading of the Dennis decision, the Court scrambled to explain why its holding there did not control the present case. Apparently, the Dennis defendants' liability rested on such factors as the fact that they advocated violence as a "rule or principle of action," that they used "language of incitement" and that the CPUSA was sizeable, cohesive, and oriented toward action. These factors distinguished the advocacy in Dennis from true "abstract advocacy." In Dennis, the defendants had been charged under the conspiracy provision of the Smith Act, which (unlike most conspiracy laws) did notrequire that the defendants have committed an overt act to convict them. In

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contrast, the Yates defendants had been charged under the general federal conspiracy statute, and the government had been found to have satisfied that statute's overt act requirement. The Court of Appeals had seized on this finding to determine that the advocacy was sufficiently linked to action to exceed the protective envelope of abstract advocacy. 174 The Supreme Court correctly noted, however, that such an act could not itself serve as evidence of the nature or danger of the advocacyY 5 It therefore concluded that the trial court's instructions had been inadequate to sustain the convictions. As an attempt to provide assistance to future courts wrestling with its confused jurisprudence, the Yates Court made another attempt to formulate the elusive distinction between protected "abstract" advocacy and unprotected advocacy directed toward concrete action at some undetermined point in the future. It explained that " [t ]he essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something."176 Although the Court refused to require that the advocacy be of immediate or proximately foreseeable action, it did note that "[v]ague references to 'revolutionary' or 'militant' action of an unspecified character," where made in the context of "doctrinal disputation," would not be sufficient to sustain a conviction. 177 With the convictions overturned, the Court proceeded to examine the evidence presented below and to take the surprising step of ordering the acquittal of five of the fourteen communist defendants. 178 As to the remaining nine, however, the Court found that evidence presented concerning the classes they administered might permit a jury to find that the "purpose of such classes was to develop in the members of the group a readiness to engage ... in such activities as sabotage and street fighting." Thus, only six years after Dennis, the Supreme Court reversed the convictions of CPUSA members in situations in which the defendants' convictions would almost surely have stood under Dennis. 179 This fact was not lost on Justice Clark, whose dissent made clear the similarity between the two cases should have been dispositive of the defendants' challenges. The acquittals in Yates thus indicate a dramatic shift in the Court's attitude. Moreover, notably absent from the opinion was the kind of anticommunist rhetoric found in such excess in the Court's earlier opinion in Dennis. 180 Such a remarkable divergence of results in two nearly identical cases illustrates an inherent difficulty with the "clear and present danger" test: its total lack of predictive value. Moreover, the confusion between Dennis's "advocacy-discussion" distinction on the one hand and Yates's "abstract advocacy-concrete advocacy" dichotomy on the other rendered the Court's unlawful advocacy jurisprudence virtually unintelli-

Unlawful Advocacy and Free Speech gibJ!e. Indeed, the futile attempt in Yates to clarify Dennis's advocacy-discussion distinction merely exposed the intellectual bankruptcy of the inquiry in the first place. The refined "abstract advocacy/advocacy directed at promoting unlawful action at some future time" dichotomy is apparently not an inquiry merely into intent, as the discussion-advocacy pairing appeared to have been. What it actually is an inquiry into is tremendously unclear, however, as the Yates Court ducked the issue by relying on an interpretation of the Smith Act, rather than the Constitution, to find that "abstract advocacy" was not punishable. 181

Noto v. United States and Scales v. United States Four years after Yates, the Court decided two other Smith Act cases, Scales v. United States 182 and Noto v. United States.1 83 Although Scales addressed a host of statutory, constitutional, and evidentiary challenges, with the result that the conviction was affirmed, Noto is remarkable for its simple and direct treatment of petitioner's attack on the evidence used to convict him. Both cases involved convictions under the Smith Act's membership clause, which made it a felony to acquire or hold knowing membership in any organization which advocated the overthrow of the United States by force or violence. 184 John Scales's unsuccessful evidentiary challenge required the Court to clarify Yates's evidentiary implications. 185 First, the Court proclaimed that a broad category of evidence was insufficient to show illegal advocacy. This included evidence of "the teaching of Marxism-Leninism and the connected use of Marxist 'classics' as textbooks; the official general resolutions and pronouncements of the party at past conventions; dissemination of the party's general literature, including the standard outlines on Marxism; the party's history and organizational structure; the secrecy of meetings and the clandestine nature of the Party generally; statements by officials evidencing sympathy for and alliance with U.S . S.R." 186 This was a truly remarkable pronouncement, because the list included virtually all of the evidence relied on by the government in the Dennis prosecution. Such evidence is not irrelevant, the Scales Court noted, but would not, standing alone, be sufficient to sustain a conviction. Furthermore, the Court stressed that "infrequent [and] sporadic" incidents of illegal advocacy, standing alone, would not be sufficient to sustain a conviction. 187 What would be sufficient, the Court explained, was the teaching of techniques for achieving the end of violent overthrow, coupled with advocacy and teaching of the need for forceful revolution.l88 With the standard hinted at in Yates more clearly defined, the Court proceeded to apply it to the record. 189 Because the prosecution was

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brought under the membership clause of the Smith Act, the government needed merely to show that the party engaged in illegal advocacy of overthrow, that the defendant was a "knowing" and "active" member of the party, and that the defendant possessed specific intent. 190 The evidence introduced included testimony from numerous informers who repeated the doctrine they had been taught in the CPUSA schools. This testimony contained references to jujitsu training given to students with the advice that it might be helpful on a picket line, repeated references to the need for violent revolution and an apparent desire to carry out these plans when practicable. 191 The Court found the evidence sufficient, and sustained the conviction, with no discussion of precisely which evidence had extended beyond the protected bounds of abstract advocacy. 192 John Nato £aired better. Applying the standards it had announced the same day in Scales, the Court reversed his conviction, finding that the trial testimony introduced no evidence that exceeded the constitutional protections for abstract advocacy. 193

THE IMPLICATIONS OF THE COMINTERN AND VENONA DOCUMENTS FOR THE COLD WAR CASES

Dennis has traditionally been viewed as the liberals' poster child for the

evils and suppression of the cold war period. Without any evidence of concrete advocacy or attempts to organize the violent overthrow of government even at the most incipient stages, leaders of a political party were convicted in a less than a day, and ultimately imprisoned, for conspiring to organize the teaching of unlawful advocacy. This happened, even though the government had established nothing more that the defendants had adhered to a political philosophy that inherently contemplated radical social change at some indeterminate point in the future. It clearly was, as one historian has described it, little more than "a trial of ideas," 194 something more appropriately associated with a totalitarian society than what is supposedly a constitutional democracy. It is difficult to focus blame for such a constitutional monstrosity, for the simple reason that there are so many very viable candidates for that award. One may begin with the FBI, whose director's obsession with the dangers of dissent leq to both the inspiration for and the shaping of the indictments. 195 One may then proceed to the Democratic administration, which yielded to the heavy political pressure, both internal and external, to proceed with what amounted to a frivolous indictment. The trial judge

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surely merits consideration for the award, given his transparent hostility toward the defendants and his grossly underprotective instructions. The jury also shares blame, because it disposed of nine months of trial in less than a day when the stakes arguably amounted to the continued viability of the republic. Judge Learned Hand and the Second Circuit deserve to share the blame for manipulating the governing constitutional standard of free speech protection in what should have been seen as a transparent attempt to ensure that the convictions would be upheld. Moreover, that court's decision to supplant the required careful examination of the evidence with casual references to world conditions effectively gutted any meaningful protection that the preexisting "clear and present danger" test could even be hoped to have provided. Finally, the majority of the Supreme Court that affirmed the Second Circuit's decision, for reasons already discussed in detaii,l 96 deserves significant blame for manipulating the governing speech-protective constitutional standard, for unnecessarily choosing to artificially confine the scope of its review, for making casual and unsupported references to world conditions as a justification for suppression, for imposing a level of deference to the political branches of government that was wholly inconsistent with our structure of judicial review and constitutional democracy, and for cavalierly disposing of complex free speech issues by resort to what amounts to little more than empty political rhetoric. 197 Today, the revelations of the Comintern and Venona documents are somehow thought by certain scholars to provide the basis upon which to alter this highly negative view of the Dennis trial and appellate decisions as little more than naked suppression. Instead, those documents are thought to characterize the Dennis prosecutions and convictions as the legitimate protection of national security. 198 Yet the simple fact is that there is no logical connection between the post-1990 historical revelations on the one hand and the prosecution, trial or appeals of the communist leaders, on the other. Whatever inferences one may reasonably draw about American communists on the basis of those revelations, they tell us nothing about the wisdom, morality, or legitimacy of the prosecutions of communist leadership on the grounds of conspiring to teach the necessity of attempted overthrow. One can persuasively argue, on the basis of the evidence revealed by both the Venona and Comintern documents, that many of the allegations leveled at American communists by conservatives during the 1940s and 19 sos were absolutely true. One might further reasonably conclude that at least certain segments within the party are fully deserving of the moral approbation given them by modern anticommunist historians. But the condusions reached by anticommunist historians appear to be premised

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on a flawed logical assumption: that the legitimacy and illegitimacy of the two sides of these historical events are somehow mutually exclusive. In other words, they appear to proceed on the implicit assumption that a conclusion that the activities of American communists were illegitimate logically leads to the conclusion that the activities of the American government that sought to suppress them were therefore necessarily legitimate. It is quite conceivable, however, that both participants are deserving of moral approbation for their behavior before and during the McCarthy era. In short, the improprieties of the American communists during the McCarthy era in no way automatically validate the government's treatment of those communists. One may reasonably wonder why, if the American communist leaders were vulnerable to prosecutions for espionage, the government instead chose to prosecute them for the constitutionally far more questionable Smith Act violations. Although there appears to be no clear answer to this question, several possibilities readily come to mind. Initially, one may speculate that the FBI was concerned that bringing numerous prosecutions for espionage would have required exposure of relevant Venona documents and thereby threatened the secrecy of the decryption program. Even if this were true, however, the fact does not justify sweeping violations of First Amendment rights through resort to alternative prosecutions. Another possible explanation is that espionage prosecutions would not have taken the FBI from point A to its intended point B. Hoover's goal was clearly "to establish the illegal status of the Communist Party of the United States of America." 199 Although individualized prosecutions for espionage or the facilitation of espionage would no doubt have caused serious political harm to the party, they would not necessarily have had the practical impact of outlawing its very existence. Although the Smith Act prosecutions did not have that effect as a technical matter, they clearly came far closer than espionage prosecutions would have. Finally, it is important not to ignore the implicit message sent to the public at large by the very fact of the Smith Act prosecutions. As already noted, those prosecutions did not seek to punish espionage, attempted overthrow, or even the beginnings of an organized effort to make preparations for an attempted overthrow. Rather, they punished those who had organized a group that engaged in and dispensed unpopular political thought and may have contemplated the abstract possibility of violent overthrow. The message to the nation, although never stated explicitly, seems to have been quite clear: "Engage in unpopular political thought at your own risk." This was a strategic benefit that Hoover could never have hoped for from prosecutions for far more extreme behavior, such as

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espionage, in which most Americans would never even consider engaging. In light of this analysis, the striking differences between the behavior sought to be punished by the Smith Act prosecutions and the behavior revealed by the Venona documents should now be crystal clear. When one views this historical debate through the lens of the First Amendment, the illogical grounding of the arguments made by modern anticommunist historians becomes readily apparent. This does not mean, of course, that the CPUSA should have been fitted for either martyrdom or sainthood, or that the activities of the party's so--called secret apparatus should have gone unpunished because of a First Amendment-imposed straightjacket. But as free speech scholars have long known, the First Amendment necessarily protects the expression of rogues as well as saints. As modern decisions of the Supreme Court illustrate, 200 protecting the speech of those whose views and behavior may be widely deemed morally repugnant simply comes with the territory. It is only by assuring that all views, no matter how widely deemed socially or morally repugnant, are protected can a democratic society survive in any meaningful sense of the term. 201 Absent such a fundamental commitment to viewpoint neutrality in the application of the First Amendment, that guarantee necessarily degenerates into little more than a fight for power that will enable the victors to suppress whatever they deem to be the repugnant views of the losers. To allow government to suppress or punish such advocacy is likely to amount to little more than ideological suppression, an intolerable subversion of the nation's constitutional democratic structure.

THE IMPLICATIONS OF THE COLD WAR CASES FOR THE FUTURE OF FIRST AMENDMENT THEORY

Viewing the modern historical debate, triggered by the Comintern and Venona documents, from the perspective of First Amendment analysis provides extremely valuable insights for a proper understanding of the period. As previously shown, such an exercise demonstrates that the issues are considerably more complex than historians on both sides of the political spectrum appear to have recognized. In addition, however, close examination of the Smith Act prosecutions and comparison of those events to the revelations of the Venona documents provides an important basis on which to rethink the central tenets of the theory of free expression itself. Reconciliation of the constitutional protection of free speech with the regulation of unlawful advocacy has long presented a substantial problem for both courts and commentators. To this date,

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the Supreme Court remains unclear as to the outer constitutional limits on such regulation, leading on occasion to significant confusion among the lower courts. Moreover, scholars have long debated the proper scope of unlawful advocacy protection, without any satisfactory resolution. The detailed scrutiny of the Smith Act prosecutions, as well as of the free speech implications of the Venona revelations, sheds a great deal of light on the fundamental problem of reconciling free speech with the need for societal protection. Before one can comprehend that synthesis, however, it is necessary to understand both the doctrinal and theoretical frameworks that have been used to determine the level of First Amendment protection to be given to unlawful advocacy. The following discussion therefore explores both of those issues. First Amendment Doctrine and Unlawful Advocacy Regulation The First Amendment law of unlawful advocacy regulation begins-and possibly ends-with the Supreme Court's creation of the "clear and present danger" test. The test, created by Justice Holmes in the 1919 decision of Schenck v. United States, 202 asks "whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. " 203 Holmes characterized the question as a matter "of proximity and degree. " 204 According to Kent Greenawalt, the phrasing of the test seems to demand "a serious evil, a substantial likelihood that speech will cause the evil, and a close temporal nexus between speech and evil." 205 However, at least in its early years, the test was used by the Court solely for the purpose of judicially ratifying the governmental suppression of politically unpopular speech that could hardly have been thought to give rise to a realistic danger of any serious harm to any one. 206 In other cases, the Court completely ignored the test, even where it would seem to have given rise to serious constitutional problems. Illustrative is the Court's 1919 decision in Debs v. United States/ 07 where the Court upheld the conviction of popular socialist leader Eugene Debs. He had been convicted under the Espionage Act of 1917 of attempting to cause insubordination in the military forces and obstructing recruiting and enlistment into the military. Debs had given a speech praising socialism and criticizing both the war and the draft. The speech closed with the exhortation, "[d]on't worry about the charge of treason to your masters; but be concerned about the treason that involves yourselves. " 208 At no point, however, had the government

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presented any evidence to demonstrate that the speech had given rise to noticeable insubordination in the army or obstruction of the draft. Nevertheless, the Court, in an opinion by Justice Holmes, upheld the conviction, without even making reference to the "clear and present danger" test that he himself had created earlier the same year. In following years, clear and present danger had something of an upand-down history. In his famed dissent in Abrams v. United States, Justice Holmes, joined by Justice Brandeis, sought to provide a much more speech-protective version of the test than either the Abrams majority or even Holmes himself had adopted to that point. "It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned," Holmes wrote. 209 However, in its 1925 decision in Gitlow v. New York, 210 the Court ignored its "clear and present danger" test in reviewing the constitutionality of a state legislative prohibition on the advocacy of violent or forceful overthrow of the government. Instead, at least for cases in which the challenged legislation directly prohibited words rather than behavior that might be brought about by words, 211 the Court used a standard highly deferential to the legislative judgment, on occasion referred to as the "bad tendency" test212 : if there was any possibility that the feared harm might occur as a result of the prohibited words, the legislation would be upheld. Despite the Court's highly deferential approach adopted in Gitlow, the speech-protective version of clear and present danger received its strongest articulation in the famed concurring opinion of Justice Brandeis (joined by Justice Holmes) in the Court's subsequent decision in Whitney v. California. 213 Brandeis initially acknowledged that free speech rights are not absolute. Instead, "[t]heir exercise is subject to restriction, if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, economic or moral." 214 However, a restriction on expression cannot be imposed "unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent. "215 In one sense, at least, Brandeis's version of clear and present danger may be considered something less than adequately protective. Question may be raised whether Brandeis's inclusion of intent as an alternative to the likelihood of actual harm sufficiently guarantees free and open debate. As a purely subjective matter, a delusional speaker may well intend-indeed, fully expect-that her words will produce harm in situations in which, as an objective matter, the danger is virtually nonexistent. Moreover, allowing a fact finder to inquire into a speaker's intent as the

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standard for constitutional protection carries serious risks of abuse and uncertainty. Nevertheless, Brandeis's insertion of the word imminent in place of the test's original use of the word, present clearly signals a move toward a more restrictive-and therefore more protective-temporal requirement than the test's original version had. Under Brandeis's version, presumably a fact finder would be required to determine that the temporal difference between the expression sought to be regulated and the actual harm being advocated was minimal. Although Justice Brandeis did not speak for a majority of the Court in Whitney, in a series of subsequent decisions the Court seems to have adopted a reasonably speech-protective version of the "clear and present danger" test. 216 None of those decisions, however, concerned speech intertwined with an organized communist effort to advocate violent overthrow. When that issue arose, the Court in Dennis v. United States 217 abandoned any meaningful requirement of temporal imminence in its application of clear and present danger. Instead, as the earlier discussion of Dennis demonstrated, Chief Justice Vinson, speaking for a plurality, sought to vary the level of imminence required by drawing an inverse connection to the severity of the threatened harm: the more serious the threatened harm, the less likely the harm had to be. Because the harm caused by attempted overthrow was truly grave, the showing of temporal connection need only be minimal. Indeed, as has already been demonstrated, the evidence in that case gave not the slightest support for a finding of any likelihood of harm, yet Vinson found the temporal requirement satisfied. It therefore seems clear that in reality, at least in cases in which violent overthrow was advocated, he did not intend to require a finding of any real temporal connection at all. Although in the subsequent decision in Yates v. United States the Court seemed to cabin some of the more underprotective aspects of Dennis, 218 even when read together the decisions leave government with a substantial level of discretion in suppressing speech advocating violent overthrow. Thus, it is not surprising that although the plurality in Dennis purported to adhere to a modified version of clear and present danger, commentators have long questioned whether the decision actually did so. 219 Nevertheless, in its most recent detailed discussion of unlawful advocacy regulation, the Court appeared-at least at first glance-to adopt a highly protective version of clear and present danger, reminiscent of Justice Brandeis's concurrence in Whitney. Brandenburg v. Ohio, 220 decided in 1969, involved a prosecution against the leader of a Ku Klux Klan group who at a public rally had urged that African Americans be returned to Africa and Jews to Israel, and who had made vague references to the possibility of a need for "revengeance" against the continued sup-

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pression of the white race. He had been convicted under Ohio's Criminal Syndicalism Act of "advocat[ing] ... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." 221 The Court invalidated the statute in a brief per curiam (unsigned) opinion. Although the opinion made no express reference to the "clear and present danger" test, the Court's words appeared to use a speech-protective version of that standard. The opinion stated that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. " 222 Use of the word imminence readily invited reference to Justice Brandeis's highly protective version of clear and present danger in Whitney. Yet puzzlingly, in an accompanying footnote, the Court expressly relied on Dennis and Yates, rather than the Whitney concurrence, as support for its standard for protecting unlawful advocacy: It was on the theory that the Smith Act ... embodied such a principle and that it ha.d been applied only in conformity with it that this Court sustained the Act's constitutionality [citing Dennis]. That this was the basis for Dennis was emphasized in Yates ... in which the Court overturned convictions for advocacy of the forcible overthrow of the Government under the Smith Act, because the trial judge's instructions had allowed conviction for mere advocacy, unrelated to its tendency to produce forcible action. 223

This footnote would seem to suggest that, despite its strong words in the text of its opinion, in reality all the Court intended to do in Brandenburg was apply the distinction, arguably hinted at in Dennis and drawn definitively in Yates, between protected "abstract" advocacy on the one hand and unprotected advocacy of concrete future conduct at some undetermined point, on the other. In addition to this explanatory footnote, two other factors may support this highly limited view of Brandenburg's intended doctrinal impact. First, it is difficult to imagine that the Court would, for the first time in its history, expressly adopt Justice Brandeis's highly protective "imminence" version of clear and present danger without explicitly relying on his Whitney opinion and in any event do so in a brief, unsigned opinion-a device usually designed to signal the relative lack of controversy caused by the decision. Second, it is probable that both the state statute on its face and the state's regulation of the defendant's expression in Brandenburg could have been invalidated exclusive-

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lyon the basis of the Dennis-Yates "abstract advocacy" reasoning, without resort to the far more speech protective Whitney concurrence. Nevertheless, significant contrary evidence as to the Brandenburg Court's intent also exists. Initially, it is virtually inconceivable that the anonymous drafter of the Court's opinion in Brandenburg, not to mention the justices who signed on to that opinion, could have failed to recognize the constitutionally charged nature of the opinion's use of the word, "imminent," in light of its centrality to the highly protective test advocated in Justice Brandeis's famed opinion in Whitney. Moreover, whatever subsequent Supreme Court case law exists appears to support the considerably more protective reading of Brandenburg. In its decision four years later in Hess v. Indiana, 224 for example, the Court reversed the conviction of an antiwar demonstrator who had been arrested for stating, " [w ]e'll take that fucking street later." "At best," the Court's unsigned opinion stated, the "statement could be taken as counsel for present moderation; at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time. " 225 To the extent the defendant's statement could properly be construed as advocacy at all, it surely did not amount to "abstract" advocacy, as the Court has defined that phrase. Yet the Court nevertheless found that punishment of the defendant for making the statement did not satisfy Brandenburg's imminence test. Traditionally, most commentators have had little trouble concluding that the Court's opinion in Brandenburg adopts a highly protective "imminence" test. According to Gerald Gunther, for example, in Brandenburg the Court "produce[d] its clearest and most protective standard [for unlawful advocacy protection] under the first amendment." 226 More recent commentators have agreed. 227 In a highly controversial modern decision, however, a respected lower federal court strongly disagreed with this scholarly view, construing postBrandenburg law to constitute nothing more than an uncontroversial application of the Dennis-Yates abstract advocacy dichotomy, which of course had been established long before Brandenburg. In Rice v. Paladin Enterprises, Inc., 228 the United States Court of Appeals for the Fourth Circuit upheld an award of damages against the publisher of Hit Man: A Technical Manual for Independent Contractors. As the name implies, the book sought to provide a how-to explanation of committing murders for hire. Relying on the book as a guide, an individual committed several murders for hire. The murderer had been sentenced to death and the man who had hired him sentenced to prison. Nevertheless, the relatives and representatives of the decedents brought a civil suit against the publisher, alleging that the book had aided and abetted the murderer. The defendant had stipulated, for purposes of argument, that in marketing its manual, it

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had "intended to attract and assist criminals and would-be criminals who desire information and instruction on how to commit crimes," and that it had "intended and had knowledge" that the book actually "would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire." It further stipulated that its manual had been used in preparation for the murders in question. 229 It is difficult to imagine that the finding against the defendant in Rice could have been upheld under the speech-protective "imminence" version of the Brandenburg test. Whatever harm that might result from the manual's publication would come much later. Yet the court upheld the constitutionality of a possible damage award, reasoning in part that "[a]id and assistance in the form of this kind of speech bears no resemblance to the 'theoretical advocacy' [or] 'the mere abstract teaching [of] the moral propriety or even moral necessity for a resort to force and violence,"' quoting Brandenburg. 230 The Rice court thus quite obviously chose to adopt the far less protective reading of the Brandenburg imminence test, where lack of imminence is somehow equated, not with the lack of an immediate temporal connection between advocacy and harm (as both the commonsense use of the word and its historical use by Justice Brandeis in his Whitney concurrence necessarily suggest), but rather with purely abstract advocacy, in the sense cryptically described in Yates. It is not difficult to conclude, on the basis of this brief doctrinal review, that unlawful advocacy regulation in general and clear and present danger in particular are in a state of almost total confusion in the courts. Unfortunately, the scholarly commentary on the subject is in almost as confused a state. But there is, I believe, hope for clarity and resolution. Close examination of McCarthy-era history reveals the need for a dramatically altered doctrinal and conceptual approach to the issue of unlawful advocacy protection-one that synthesizes elements of several preexisting models and varies their application, depending on the specific factual context in which the constitutional issue arises. Adoption of such an approach would bring conceptual order to the current state of doctrinal chaos while simultaneously accommodating the competing pragmatic interests involved. However, because this new approach draws on elements of preexisting conceptual models that scholars or jurists have previously suggested, in order to fully understand the revised model advocated here it is first necessary to understand those preexisting models. Hence the following discussion moves beyond the current state of constitutional doctrine to explore the contours of the underlying conceptual models advocated by scholars on jurists over the years. Once the alternative theoretical models have been explored, the analysis will turn to an explanation of my recommended selective synthesis of those models.

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THE PREEXISTING MODELS OF UNLAWFUL ADVOCACY PROTECTION

Although no one to this point has used these specific labels, one may nevertheless accurately glean four models of unlawful advocacy protection from the writings of free speech scholars and jurists over the years: ( r) the absolute-definitional model; (2) the deferential balancing model; (3) the categorical-balancing model; and (4) the speech-protective balancing model (of which the "clear and present danger" test is an example). 231 The first three models have never proven to be acceptable means of reconciling competing interests in all cases of unlawful advocacy regulation. In past writing, I have argued that the fourth model, although by no means free from risk, presents at least an adequate method of assuring that the needs of free expression are properly reconciled with pragmatic needs of security. 232 However, the lesson of the McCarthy-era cases is that the use of that model in all cases of unlawful advocacy regulation would too often leave protected expression vulnerable to suppression on grounds of political hostility. The Absolute-Definitional Model

What I refer to as the absolute-definitional model posits that because the First Amendment, by its terms, unqualifiedly protects the freedom of "speech," the only legitimate inquiry can be whether the behavior sought to be punished, regulated or suppressed by government is appropriately characterized as absolutely protected "speech" or as completely unprotected nonexpressive conduct. The reviewing court's only role under this model, then, is to ascertain in which of the two categories the regulated activity falls. Its answer to that question will always be outcome determinative. The leading advocate of the absolute-definitional model was Emerson, who argued that "[t]he central idea of a system of freedom of expression is that a fundamental distinction must be drawn between conduct which consists of 'expression' and conduct which consists of 'action.' 'Expression' must be freely allowed and encouraged. 'Action' can be controlled, subject to other constitutional requirements, but not by controlling expression. " 233 A court's role under this standard is not to balance the interest in speech against competing interests, but rather to characterize conduct as one form of behavior or the other. This definitional approach has an obvious intuitive appeal. After all, it is certainly true that as a textual matter the First Amendment protects "speech," not action. Moreover, at least on a superficial level the concep-

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tual distinction between speech and action would seem to be an intuitively easy one to draw. As superficially appealing as this suggested approach may seem, however, closer examination reveals its pragmatically unsatisfactory nature. Initially, the text of the First Amendment provides little support for this model because it is not "speech" that the Amendment guarantees but the "freedom of speech," which may well be a very different concept. Indeed, it has on occasion even been suggested that the phrase freedom of speech was intended to implement nothing more than a rather narrow, technical form of protection, the prevention of prior restriant.234 Surely there is no historical basis on which to believe that anyone assumed that the amendment was intended to protect all forms and subjects of communication. This does not mean that one should necessarily reject the speech-action dichotomy out of hand, because the text no more supports any other version of unlawful advocacy protection than it does the absolute-definitional model. However, it does mean that neither constitutional text nor constitutional history provides dispositive evidence to support the standard. The most significant problem with the absolute-definitional modeland one that ultimately proves fatal to its universal adoption-is simply its impracticality. It is difficult to imagine, for example, that, as a practical matter, the First Amendment could properly be construed to protect a mob leader's urgings to a torch-carrying mob to storm a poorly protected jail, even though such urgings would, at least on first examination, appear to be a form of persuasive communication. In an effort to escape this untenable conclusion, an advocate of the absolute-definitional model might contend that a mob leader's urgings are properly conceptualized not merely as advocacy of action but rather as part of the mob's action itself. Yet to characterize as "action" any speech that urges action any time the advocacy is temporally close to the advocated action incoherently collapses the concepts of speech and conduct. Quite probably to avoid reaching the untenable conclusion that speech rousing an angry mob to action is absolutely protected expression, Emerson was willing to characterize as unprotected conduct what by any reasonable linguistic assessment amounts to expression. Close cases concerning the dividing line between speech and conduct are, he argued, to be decided "by consideration of whether the conduct partakes of the essential qualities of expression or action, that is, whether expression or action is the dominant element." 235 He concluded that "when the communication is so close, direct, effective, and instantaneous in its impact that it is part of the action," it may appropriately be characterized as action, rather than speech. 236 [n certain instances-for example, a robber saying to his victim, "your

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money or your life"-Emerson's approach represents a reasonable application of the absolute-definitional model. However, it appears that Emerson would have applied it far more widely. In his words, "[c]ommunica. tion that is specifically concerned with a particular law, aimed at a particular person, and urges particular action, moves closer to action. Communication also tends to become action as the speaker assumes a personal relation to the listener, deals with him on a face-to-face basis, or participates in an agency or partnership arrangement. " 237 Under this understanding of the speech-conduct dichotomy, it is quite conceivable that the persuasive use of words could be characterized as unprotected conduct, rather than speech-hardly a linguistically coherent application of a true definitional model. Thus, Emerson seems implicitly to concede that a rigid and absolute speech-action dichotomy, where words must either themselves amount to coercive action or be so closely intertwined with action that they can reasonably be characterized as part of that action, cannot be used to resolve the constitutional dilemma that plagues unlawful advocacy regulation, for the commonsense reason that it fails to provide society with sufficient security against criminal conduct. Although a requirement of the showing of a reasonable temporal connection between words and conduct may be used in order to ensure that First Amendment interests are protected, requiring a showing that the words are the conduct before government may regulate is simply not sufficiently protective of society's interest in preserving its own security. The Deferential Balancing Model

At the opposite extreme from the absolute-definitional model is what is appropriately described as the deferential balancing model, advocated by, among others, Justice Frankfurter in his Dennis concurrence. 238 This approach posits that the judiciary must defer to the choices made by the political branches of government. Although the model purports to involve a balancing of competing societal and constitutional interests, experience shows that in reality use of the term amounts to a euphemism for all-but-total deference to the so-called majoritarian sectors of government. This model gives rise to very serious concerns of constitutional and political theory. It basically ignores the premises of judicial review and ignores the inherently countermajoritarian nature of the Constitution. A countermajoritarian constitution is meaningless, Chief Justice Marshall persuasively warned in Marbury v. Madison, 239 absent a countermajoritarian judiciary to enforce its directives against the majoritarian

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branches. 240 Yet the deferential balancing model effectively amounts to the judiciary's abdication of its fundamental responsibility to enforce what is perhaps the most central constitutional directive; without the opportunity for unfettered political dissent, a true constitutional democracy is of course impossible. On a more pragmatic level, the deferential balancing model invites the kind of governmental abuse of political dissent that pervaded the Dennis case. 241 There, those holding politically unpopular views were punished on the basis of little more than reliance on the antiquated texts in which they believed, with unsupported governmental as:;ertions of some form of realistic danger of attempted overthrow serving as nothing more than a fig leaf for such suppression. Where the judiciary abdicates its function of providing a buffer between individual rights and the majoritarian branches of government, such blatant suppression will inevitably go unchecked. And it is not only the Constitution that suffers as a result; the democratic process itself is rendered meaningless if those in power may suppress the expression of those who are not. It might be argued that although my analysis holds true when the dissenters seek to operate within the framework of the existing political system, judicial deference to governmental suppression is perfectly appropriate when those suppressed seek to operate outside that system and to replace it with a totalitarian form of government. Almost fifty years ago, Carl Auerbach argued that the First Amendment has no role to play in protecting the speech of those who advocated replacement of constitutional democracy with a totalitarian form of government, even through the legal means of constitutional amendment rather than violence. As a result, he reasoned, the government could suppress American communists without necessarily making any showing of any danger of serious violence or illegality. 24 2 Even if one accepted Auerbach's argument, it would not justify the type of judicial abdication inherent in the deferential balancing model. Rather, it would constitute a consciously chosen interpretation of the First Amendment's scope. It is nevertheless true that, as a practical matter, acceptance of this view would moot any questions raised about the advisability of the deferential balancing model. But, it is clear today, both as doctrinal and theoretical matters, that Auerbach's argument must be rejected. Doctrinally, the Supreme Court has made clear that, for purposes of the First Amendment, there is no such thing as a "false idea. " 243 Thus, government may never punish or suppress expression for no reason other than disagreement with or distaste for the views expressed. 244 As a matter of First Amendment theory, this conclusion is inescapable. As already noted, to allow government to impose viewpoint regulation inevitably invites those in power to suppress the speech of those with

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whom they differ, transforming the First Amendment into little more than a struggle for power. And no exceptions to this directive can logically be recognized; if one viewpoint is exempted from First Amendment protection because it alone is deemed sufficiently offensive, then the issue in each case of suppression will be whether the viewpoint being suppressed is subjectively deemed sufficiently offensive by either those in power or by the reviewing court. For example, if pro-life forces dominate government, presumably they may deem pro-choice expression offensive and therefore suppress it; if, on the other hand, pro-choice forces are in power, the reverse would be true. No true constitutional democracy can operate under such a framework. Auerbach could perhaps respond to this argument by suggesting a persuasive basis for distinguishing generic viewpoint regulation from the particular context of expression urging adoption of a totalitarian state. After all, neither the First Amendment nor any other aspect of constitutional democracy would survive such a transformation, even if it were accomplished peacefully. But to deny the citizenry the opportunity even to consider the imposition of an authoritarian state constitutes an insult to the abilities of citizens that is, paradoxically, wholly inconsistent with the principles of democracy. Yet it is those very principles that, ironically, Auerbach purports to preserve. This point is underscored by recognition that, under Article V, the Constitution may be amended, by resort to a specified supermajoritarian process, to radically transform existing governmental processes. Under Auerbach's approach, democracy is preserved, not through resort to the very democratic process he seeks to defend-reasoned choice reached as the result of free and open debate among free citizens-but rather through governmentally imposed viewpoint suppression, grounded in the governmental fear that if debate were truly free the citizenry would make the wrong choice. Ironically, then, under Auerbach's suggested interpretation of the First Amendment, the effort to preserve democracy has itself undermined that system's fundamental premises. Speech-Protective Balancing: Clear and Present Danger

If one rejects the absolute-deferential balancing model, either because of the difficulty in applying it or its tendency to threaten legitimate security concerns, and if one further rejects the deferential balancing model because the judicial abdication that it invites is wholly inconsistent with the judiciary's proper role in a constitutional democracy and shields thinly disguised viewpoint-based suppression, still other models remain

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available. Chief among them is what I have referred to as the speech-protective balancing model. Like the deferential balancing model, this approach eschews any claim to First Amendment absolutism. It contemplates that activity properly characterized as speech may, under appropriate circumstances, be suppressed consistent with the First Amendment. However, unlike the deferential balancing model, the speech-protective version categorically rejects any notion of judicial abdication. On the contrary, the model contemplates significant judicial intervention in order to ensure that government's claims of truly compelling harm are accurate. The protective version of clear and present danger is generally associated with Justice Brandeis's concurrence in Whitney. That test focuses both on the requirement of a significant temporal connection between advocacy of unlawful conduct and the resultant harm and the substantiality of that harm. Although the test contemplates suppression of what is properly characterized as expression when the danger of harm is both serious and immediate, it begins with a strong presumption in favor of protection of the advocacy of unlawful conduct. The speech-protective balancing model possesses significant advantages over the prior two models that have been examined. Unlike the absolutist-definitional model, the speech-protective balancing model avoids both unreasonable overprotection on the one hand or the cynical manipulation required to avoid such overprotection, on the other. Moreover, unlike the deferential balancing model, it avoids highly problematic judicial abdication. This does not mean, however, that the speech-protective balancing model is free of problems or difficulties. Critics over the years have pointed with concern to the standard's inherent flexibility and therefore inescapable vulnerability to invidious manipulation. As far back as 192.1, Judge Learned Hand privately criticized the "clear and present danger" test on the grounds that "[o]nce you admit that the matter is one of degree, while you may put it where it genuinely belongs, you so obviously make it a matter of administration, i.e. you give to Tomdickandharry, D.J., so much latitude that the jig is at once up." 245 Any test that requires an adjudicator or fact finder to take into account a subjective assessment of the case's specific factual context, the argument goes, leaves far too much room for that adjudicator to selectively shield what is ultimately nothing more than ideologically based suppression. This concern has been echoed by modern scholars. 246 It is difficult to dismiss these concerns out of hand. The dilemma, however, is finding a preferable alternative standard. As we have seen, the absolutist-definitional and deferential-balancing models fail. Yet there does exist an alternative approach that certain scholars and jurists have found

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to provide a more viable means of reconciling the competing interests. It is to a discussion of this alternative model that I now turn. 247 The Categorical Balancing Model

In place of the inherently unpredictable "clear and present danger" test, several respected scholars have urged adoption of a "categorical" approach, pursuant to which rigid guidelines are established ex ante, in order to determine which categories of expression are protected and which are not. Under this model, John Hart Ely argued, "the consideration of likely harm takes place at wholesale, in advance, outside the context of specific cases. " 248 One specific illustration of such a categorical rule is the standard proposed by Judge Learned Hand as a district judge in his 1917 decision in Masses Publishing Co. v. Patten 249-a standard quite different, it should be noted, from the one he proposed many years later in his opinion for the Second Circuit, rejecting the First Amendment challenge in Dennis. 250 Although the case involved an issue of statutory interpretation, rather than a direct First Amendment challenge, it was clear that Hand intended his approach to have constitutional status. Although the decision was ultimately reversed on appeal, his approach has received much praise from modern commentators. 251 Hand in Masses proposed use of a seemingly easily applied formula in order to determine whether or not expression was to be deemed unprotected advocacy 'of unlawful conduct: if the speech on its face urged criminal conduct, it was not protected; if the speech did not on its face urge criminal conduct, it was protected. In Hand's words, "[i]f one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation."252 This standard avoids many of the obvious problems with the far less predictable "clear and present danger" test, and as a result presumably avoids the dangers of manipulation of that test to which it is thought to be vulnerable. But the Masses test suffers from its own serious drawbacks. By avoiding the danger of case-by-case manipulation, any categorical rule runs the risk of clumsiness; for the very reason that it is not shaped to meet the needs of a particularized situation, it risks being either overprotective or underprotective in the individual case. And Masses is just such a rule. One can certainly hypothesize situations in which expression on its face advocating criminal conduct presents a nonexistent risk of harmfor example, children on a street corner urging overthrow of the government. One can also hypothesize situations in which speech that contains

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no such facial exhortation to illegal conduct can give rise to very serious harm-for example, the statement to a torch-carrying mob in front of a poorly guarded jail, "the man in that jail killed my mother." 253 Indeed, Marc Anthony's famed funeral oration in Shakespeare's Julius Caesar, in which Anthony purports to praise Brutus yet simultaneously stirs the crowd to commit violence against him, provides a perfect illustration of the clumsiness and awkwardness of a test, such as that in Masses, that seeks to remove situational flexibility from the decision maker. The categorical balancing model, then, suffers from at least as significant a set of difGculties as all of the other models.

RESOLVING THE UNLAWFUL ADVOCACY DILEMMA BY RECONSIDERING THE MCCARTHY-ERA CASES

As the preceding discussion has shown, on the subject of unlawful advocacy both theoretical and doctrinal analyses are in a state of utter confusion. By synthesizing a careful reconsideration of the trial of the American communist leaders in Dennis with a proper understanding of the revelations of the Comintern and Venona documents, however, one may develop an entirely different approach to unlawful advocacy regulation that provides a much more satisfactory alternative to the chaos of the preexisting individualized models. In previous writing, I have argued that, with all its faults, the speechprotective balancing model should be considered far preferable to any of the other models that scholars or jurists have adopted. 254 I reached this conclusion because I believed that this model was the only approach that could provide expression with the constitutional breathing room it requires while simultaneously providing commonsense limits necessary to preserve security. Although I acknowledged that in cases such as Dennis the Supreme Court could circumvent the restrictions imposed by the protective version of the "clear and present danger" test through doctrinal manipulation, I reasoned that ultimately the same danger affected any conceivable standard: a court could simply choose to abandon any test it found too restrictive at the time of decision. 255 However, it is, I have now realized, the trial in Dennis, more than the Supreme Court's decision, that is of concern for the viability of a speech-protective balancing test. Recall that at the trial of the communist leaders, the evidence presented by the government provided absolutely no rational support for the conclusion that Communist Party leaders had organized any effort-even in the most remote fashion-to undertake plans to attempt the overthrow of the American government through violent means. At most, the evi-

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dence supported the view that the defendants were leaders of a party that adhered to the view that ultimately overthrow of the current capitalist system would be a positive development. 25 6 As Justice Douglas correctly pointed out in his Dennis dissent, there was no basis on which to believe that party leaders had even discussed any specific plans. 257 Yet under the rubric of clear and present danger, a jury took less than a day to convict the defendants of conspiring to advocate attempted overthrow. It is true, of course, that neither the trial judge nor either of the appellate courts used the highly speech-protective "imminence" version of that test. Perhaps if such a test had been explicitly used and the jury so instructed, the defendants would not have been convicted, or the trial judge would have overturned the convictions in the event the jury did convict. But it should be noted that the trial court expressly avoided reliance on the highly deferential "bad tendency" test of Gitlow v. New York, 258 instead purportedly relying on a "clear and present danger" standard. Moreover, even the Court's use of the term imminent in Brandenburg has never resolved the ambiguities of the test. 259 The lesson to be learned from this example, then, is that because of its inherently flexible and subjective nature, a "clear and present danger" test can, with relative ease, be used as a cover for what in reality is blatant ideological suppression. Within a broad range, a fact finder's discretion is substantial; only if no reasonable finder of fact could have so concluded may a jury's findings of fact be overturned.260 Thus, because of its inherent connection to the specific facts of a case, even the highly speech protective version of clear and present danger cannot always effectively shield expression from fact-finder manipulation. There exist additional reasons that the "clear and present danger" test's use in cases such as Dennis is problematic. As Justice Jackson pointed out in his concurrence in Dennis, Justices Holmes and Brandeis originally developed clear and present danger "as a test for the sufficiency of evidence in particular cases. " 261 He reasoned that [w]hen the issue is criminality of a hot-headed speech on a street corner, or circulation of a few incendiary pamphlets, or parading by some zealots behind a red flag ... it is not beyond the capacity of the judicial process to gather, comprehend, and weigh the necessary materials for decision whether it is a clear and present danger of substantive evil or a harmless letting off of steam. It is not a prophecy, for the danger in such cases has matured by the time of trial or it was never present. 262

In cases such as the allegation of a worldwide communist conspiracy spearheaded by an insidious group of American communists, however, Jackson found the test to be little more than "a judge-made verbal

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trap." 263 Thus, to Jackson, applying the "clear and present danger" test in the context of American communism would effectively be to insert a square peg into a round hole. Where, as in Dennis, whether the alleged danger will ever come to pass remains, as Jackson put it, a "prophecy," clear and present danger provides an inadequate basis on which to determine constitutional protection. It does not necessarily follow, however, that Jackson was correct in his choice of alternative to clear and present danger in such situations. Although Jackson believed that something approaching blanket deference to governmental discretion made the most sense in the nontraditional "clear and present danger" contexts, it is my belief that just the opposite is true. To provide unlimited governmental discretion to punish or suppress unlawful advocacy all but invites unrestrained governmental suppression of politically unpopular viewpoints in the face of judicial impotence-hardly the role the First Amendment should play in preserving constitutional democracy. Therefore, although Justice Jackson was correct in recognizing a subtle but important dichotomy in cases of unlawful advocacy regulation, the wiser treatment of this dichotomy is to provide absolute protection to cases of nontraditional unlawful advocacy. The only logical alternative to the highly vulnerable "clear and present danger" test in cases such as Dennis, then, appears to be resort to the absolute-definitional model. Under this approach, if the activity sought to be punished is appropriately characterized as "speech," then it is absolutely protected; if, however, it is properly characterized as "action," it receives no First Amendment protection. One might respond that this absolute-definitional model is unhelpful and impractical in cases, such as the urgings made to the torch-carrying mob outside the poorly defended jail, where the advocacy and the harm are closely connected in time and space. The point is well taken, but instead of dictating total abandonment of the absolute-definitional model, the point merely leads to its rejection only in limited circumstances. Clear and present danger makes sense in contexts in which speech and harm are taking place, or may take place, in what can be called a "confined" or "self-contained" setting-for example, a street corner situation in which one individual urges the commission of immediate or near-immediate violence against others. Where, however, the advocacy of unlawful conduct occurs in an "unconfined" setting-that is, at a time and/or place other than when and where the criminal act advocated is to take place-clear and present danger proves to be an inappropriate and unhelpful test. Under these circumstances, it is meaningless to speak of "clear and present danger," at least in the literal sense of those words. As a definitional matter, there is simply no way in which the harm can be deemed "clear and

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present" if it is to occur at a different time and place-at least if by "clear and present" one means to use Justice Brandeis's highly protective definition of "present" as "imminent." To use the test in these "unconfined" situations for purposes other than automatic rejection of any attempted regulation as unconstitutional does nothing more than invite linguistic manipulation as a guise for ideologically based suppression-exactly what happened in the Dennis prosecutions. This is so because it is impossible to speak of a meaningful inquiry into the questions of whether the danger is either "clear" or "present" in what I have described as an unconfined context. In a sense, absolute protection in unconfined settings could be thought to constitute merely a categorical application of a protective from of the "clear and present danger" standard, combined with an ex ante finding that the standard could not possibly be met in such situations. But if so, it can only invite confusion or manipulation to refer to the analysis as a case-specific application of clear and present danger. Because in absolutely no case of an unconfined setting could the danger be deemed either "clear" or "present" in any meaningful sense of those words, it is preferable simply to draw an ex ante categorical distinction between unconfined settings on the one hand, where unlawful advocacy would automatically be deemed protected, and confined settings on the other, which would require a case-by-case application of a "clear and present danger" standard. One might reasonably ask, if the case-by-case application of the "clear and present danger" test in unconfined contexts is unworkable, and the alternative (advocated by Justice Jackson) of total judicial abdication in such contexts is deemed insufficiently protective of free speech interests, whether there is not some additional alternative preferable to absolute protection. Even in noncontained situations, the argument might proceed, absolute protection provides insufficient protection to competing societal interests in maintaining the community's security, and therefore an intermediate alternative is required. The answer, I believe, is that one can adopt a standard of absolute protection of expression for unlawful advocacy, at least in "unconfined" contexts, and simultaneously provide sufficient protection to societal interests in preserving security. Such protection may be achieved both by the nature of one's definition of "speech" and the creation of limited categorical exceptions that may be applied with relative ease. In order to understand how this structure would function, however, it is first necessary to understand how the absolute protection advocated here fits within the broader structural framework of the "selective categorization" model that I advocate here. ~'.: is therefore to this issue that the analysis now turns.

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Unlawful Advocacy and Free Speech THE SELECTIVE CATEGORIZATION MODEL

Every jurist or scholar to have advocated a particular model of unlawful advocacy protection has proceeded on the implicit assumption that that model necessarily applies in all contexts of unlawful advocacy regulation. This is true, whether the chosen model is definitional absolutism, speech-protective clear and present danger, categorical balancing, or deferential balancing. As already demonstrated, however, at least for purposes of such universal use, each model suffers from significant, and probably fatal, flaws. As already noted, in my own writing I have long advocated adoption of the speech-protective version of the "clear and present danger" test. 264 However, I now believe, on the basis of close and careful analysis of the facts of the Dennis trial, that this standard is inherently vulnerable to an intolerable level of abuse, particularly in ideologically charged contexts, such as the communist prosecutions.265 By vesting in decision makers the case-by-case flexibility that is an essential by-product of the "clear and present danger" test, that test lends itself to improper manipulation, thereby enabling decision makers to disguise what in reality amounts to little more than ideological hostility toward the challenged expression. What no scholar seems to have recognized, however, is that there exists another alternative to the implicit universality of application that has characterized all unlawful advocacy theory to date: a synthesis that brings together several different models of unlawful advocacy protection. This "selective categorization" model would pick and choose among the various models, depending upon an ex ante categorical division among different groupings of factual circumstances. Four such groupings are to be recognized: (r) "confined" unlawful advocacy, (2) "unconfined" unlawful advocacy, (3) speech-acts, and (4) informational speech. As previously explained, "confined" unlawful advocacy refers to situations in which the unlawful advocacy and the harm advocated take place together, both temporally and physically. "Unconfined" unlawful advocacy includes all other situations. To be sure, difficult questions will occasionally arise as to the difference between the two situations, but these questions at the margins should present no greater difficulty for courts to resolve than countless other doctrinal distinctions create. In any event, most cases of unlawful advocacy should be readily classifiable as one or the other. In confined unlawful advocacy contexts, a case-by-case speechprotective clear and present danger standard is to be applied. In unconfined unlawful advocacy situations, for reasons already discussed, an absolute-definitional model is to be applied. Speech-acts, in contrast, will

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receive no First Amendment protection, in any context. Finally, in cases of information revelation, a speech-protective case-by-case analysis that turns on a synthesis of the damage likely to be caused by the revelations, the public's difficulty in otherwise obtaining that information and the potential value of the information revealed is to be applied. Although this selective categorization model does use a form of definitional inquiry and a form of ex ante balancing, thereby drawing on three of the existing models, at no point does it utilize the deferential-balancing model. For reasons already discussed, such deference is wholly unwarranted in any context, as a matter of constitutional theory in general and First Amendment analysis in particular. 266 Although current doctrinal analysis does not recognize these distinctions among different categories of factual circumstances, they reflect a commonsense understanding of reality with important implications for constitutional analysis. This selective categorization model is chosen, not because it flows inexorably from the amendment's text or history-a standard that no modern First Amendment doctrine could satisfy, because of the hopelessly cryptic nature of both. 267 Nor is it chosen because of some all-encompassing epistemological or hermeneutical premise. It is chosen, rather, because it pragmatically seeks to glean the best of the preexisting models while simultaneously avoiding their vulnerabilities. The first distinction drawn, between confined and unconfined unlawful advocacy contexts, has already been explained. In unconfined contexts, where the advocacy and the harm advocated are neither temporally nor physically linked, it is appropriate to make an ex ante categorical judgment that the danger of harm cannot be sufficiently proximate to justify suppression. In contrast, in confined settings, use of an absolutist approach would inevitably lead either to unacceptable tolerance of the precipitation of violence or the linguistically incoherent dilution of the concept of a speech-act. In these situations the common sense interest in security justifies the need for a case-by-case form of contextual analysis that nevertheless begins with a strong presumption in favor of protecting expression. It does not follow, however, that the societal interest in security must go completely unprotected in unconfined contexts, despite use of absolute speech protection in such situations. Although the First Amendment should be deemed to protect speech that advocates unlawful conduct absolutely in such contexts, the First Amendment does not protect nonexpressive conduct, even where words are used as part of that conduct. 268 The question in unconfined contexts under the selective categorization model, as Emerson suggested it should be in all contexts, is whether the government is seeking to regulate expression or merely conduct with

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which words are inherently intertwined. Although admittedly this distinction may leave some room for the same type of case-by-case manipulation that necessarily plagues the speech-protective "clear and present danger" test, the fact that courts would not need to apply it in confined settings should significantly reduce the pressure to define the concept of nonexpressive conduct in an unduly broad manner. 269 There are two situations in which the use of words may conceivably be characterized as unprotected action. The first can be described as "directly coercive," and the second as "facilitative." The former label refers to words that themselves are appropriately characterized as action, because they do not require the persuasion of third parties in order to cause illegal harm. Examples are blackmail and coercive threats of unlawful behavior-what can be grouped together under the heading "coercive speech." The latter description refers to situations in which words, although not themselves actions, are inherently intertwined with, and facilitative of, ongoing illegal conduct. An example is a direction by one ba.nk robber to another as to where to hide the stolen money. In such a setting obviously vocal chords are set in motion, words are used and communication takes place. However, it is clear that the words are inextricably part and parcel of the robbery. In short, words that are essential to the achievement of ongoing or contemporaneous nonexpressive acts 270 are not properly categorized as protected expression but rather as unprotected conduct. Both categories are of course potentially subject to a certain level of manipulation. Indeed, Justice Jackson's Dennis concurrence underscores this risk in the use of a facilitative action exception. There he argued that the activities of the communist defendants were not protected by the First Amendment, because they were part of a conspiracy and conspiracies are, of course, constitutionally unprotected. 271 But mindless reliance on legal labels provides an insufficient basis on which to replace careful constitutional analysis. The key point ignored by Justice Jackson is that conspiracy laws, like all other legislatively promulgated laws, may be trumped by the Constitution. Thus, it is no answer to a First Amendment challenge to rely on a finding of a violation of the anticonspiracy laws; to the extent anticonspiracy laws unconstitutionally abridge protected speech, they must be held unconstitutional. The key inquiry, under the constitutional analysis suggested here, is whether the so-called conspiracy in which communication took place includes one or a series of nonexpressive overt acts aimed ultimately toward illegal action, and whether the words used are intimately intertwined with or facilitative of that conspiracy. This overt act requirement should go a long way toward insulating true expression from abusive manipulation under the facilitative action

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category. Where, as in the case of the Dennis defendants, there was no showing of any concrete act or series of nonexpressive acts aimed toward the commission of illegal nonexpressive conduct, the expression would be absolutely protected. Note also that acts designed to do no more than facilitate expression could not properly be deemed to satisfy the overt act requirement. For example, the acts of purchasing books or renting a hall, in and of themselves, could not properly be deemed to satisfy the overt acts requirement. To do so would necessarily render the entire inquiry circular. It is only if the speech serves the act, not if the act serves the speech, that the facilitative action exception would apply. In the context of Dennis, application of the facilitative action exception would proceed as follows: in order to satisfy the requirements of the First Amendment, the government would have been required to establish that the words used by members of the Communist Party of the United States-of which the defendants were the leaders and organizers-were intimately intertwined with concrete, ongoing nonexpressive acts that were proximate steps in the mounting of illegal conduct. If the government did somehow satisfy this requirement, however, it would not be necessary for the government to satisfy any type of clear and present danger inquiry; a showing that the words in question were part and parcel of an active, nonexpressive conspiracy would automatically satisfy First Amendment requirements. It would do so, because the inquiry in unconfined contexts under the selective categorization model is an absolute-definitional model. Once it is established that the words in question are intimately intertwined with unprotected, nonexpressive conduct, the words themselves are deemed part and parcel of that conduct, and therefore do not fall within the definition of "speech." For these reasons, the First Amendment does not require the government to await the "putsch," as Chief Justice Vinson feared in his plurality opinion in Dennis. 272 In order to assure that expression is not suppressed for nothing more than improper ideological motivations, however, government must conclusively establish the intertwining of the words and the conspiratorial, nonspeech facilitating acts. In light of these analytical inquiries that are essential to the application of the absolute-definitional model, one might reasonably ask whether use of the facilitative action submodel will actually achieve the intended goal of substantially curbing the type of unbridled fact-finder discretion that so plagued the cold war-era cases. 273 After all, the argument might proceed, given the fuzziness that surrounds the application of the definitional model, would fact finders be any less free to superimpose their ideological biases onto the adjudicatory process than under the "clear and present danger" test? Although the concern is a legitimate one, there exist sig-

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nificant differences, both quantitative and qualitative, between the two approaches that should have a significant impact on the speech-protective nature of the standard. Under a "clear and present danger" standard, the inquiry is always one of "proximity and degree. " 274 As a result, it will invariably be difficult, if not impossible, to police a fact finder's determination that harm from the challenged expression is looming. This is particularly true where the reviewing court shares the jury's ideological biases. Where, on the other hand, the standard asks, not whether what is concededly speech is likely to lead to harm with some undetermined degree of imminence, but rather whether the speech is so intertwined with ongoing, nonexpressive conduct that it becomes an inherent element of that conduct, at the very least the jury's and the court's powers are significantly restrained. This is because to reject protection under the absolutedeBnitional standard, both judge and jury would need to conclude that only conduct, not speech, was involved. This should be far more difficult to accomplish than simply to conclude that what is concededly "speech" might lead to unlawful conduct. Of course, to paraphrase an argument I have used in support of a definitional model in separation-of-powers analysis, it is true that The Court-much like the proverbial nine-hundred pound gorilla-may ultimately say anything it wants. If the Court wishes to assert that a fish is a tree, for example, there is no one to stop it. But the Court's good faith adoption of the [absolute-definitional approach] would go far towards confining the unlimited flexibility inherent in a purely functional or balancing model. Although there will no doubt be close cases, both historical tradition and common sense will impose restrictions on the Court's use of purely pragmatic factors in its [First Amendment] analysis. To be sure, a Court not acting in good faith could manipulate the suggested standard, for the interpretation of any constitutional provision.275

It is also true that, had the Dennis Court applied a speech-protective "imminence" form of "clear and present danger" rather than the highly diluted form adopted by Judge Hand in the Second Circuit and Chief Justice Vinson in the Supreme Court, the convictions would have had to have been overturned as unconstitutional. Yet both jurists could proclaim to the world that they were still using the "clear and present danger" test. The very fact that both Hand and Vinson were able to make such an assertion, presumably with straight faces, underscores the risks inherent in the use of a test that allows what is concededly speech to be suppressed on the grounds that it may lead to harm. Absent an evidentiary showing that the words of the Dennis defendants were part and parcel of an ongoing series of nonexpressive actions which themselves

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were illegal, neither jurist could reasonably have maintained that the absolute-definitional model's requirements for suppression had been satisfied. This is so for the simple reason that the model absolutely protects anything classified as "speech," and it would have been unreasonable to characterize the defendants' activity as anything other than "speech," even if it were found to be advocacy of unlawful conduct. After all, as I have previously argued in a different context, "[t]he Court looks considerably sillier when it stoutly maintains that a fish is a tree than when it explains that, under appropriate constitutional theory, it simply does not matter whether the item in question is a fish or a tree. " 276 Ultimately, no constitutional doctrine or precept can restrain a Court and a nation hellbent on suppression. But a shift from the purely functional balancing process of clear and present danger to a form of definitional inquiry into the concept of "speech" or expression could, at the very least, serve as a large speed bump in the way of that suppression. When a speed bump is the only protection available to us, it must be utilized, even though it concededly serves as no guarantee of success. Potentially more problematic is the "coercive speech" exception to the absolute protection given under the selective categorization model to unlawful advocacy in unconfined settings. It is not, however, the rationale for the categorical exception that is problematic. For a variety of reasons, directly coercive expression has no place under the First Amendment's umbrella. This is so, whether one chooses to use a definitional, conceptual or pragmatic analysis. On a purely definitional level, we have already seen that the mere fact that words are used does not automatically render those words protected expression. To hypothesize the most extreme case, imagine a situation in which the use of vocal chords automatically triggers an electrified fence that electrocutes an individual leaning on that fence. Surely no one would suggest that this use of the voice constitutes protected expression. The First Amendment is quite obviously concerned with something else. True, particular words need not be used in such a situation. However, one can imagine a case where an individual issues the command "fire," to a firing squad poised to commit an execution. In this case, the particular word or words used do make a difference, yet again it is difficult to characterize this verbal effort as expression. The word is so intertwined with the action that it effectively becomes part of the action. Similarly, where words are used in a directly coercive manner, as in the case of blackmail or threats, it is appropriate to exclude those superficially expressive acts from the definition of speech. One might argue that the suggested definitional distinctions between protected speech and unprotected speech-acts ultimately amount to little more than semantic games, and in any event it is questionable whether an

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absolute definitional model is appropriate, either as a textual or historical matter. But even if one were to reject a pure definitional approach, it should not be difficult to rationalize a categorical exclusion of directly coercive speech from the First Amendment's scope. On either conceptual or normative levels, it would be anomalous to rely on the Constitution's protection of fundamental freedom as a means of directly furthering coercion of others. As David Strauss has argued, at its foundational level, the First Amendment is about the freedom to persuade. 277 One might add to that freedom the freedom to inform, either for purposes of persuasion or for the value of the communication in and of itself. In either case, the freedom of expression represents an outgrowth of a normative commitment to expressive interactions between free-thinking individuals. This is so whether one rationalizes the protection on purely Kantian grounds of individual respect or on Millian grounds of the promotion of individual development. It would be ironic if that protection were used as a means of denying another individual's free will. Finally, on a purely pragmatic level, the use of blackmail and threats is burdensome and inefficient, and surely undermines a society's ability to flourish. 278 It is therefore not difficult to understand the universal exclusion of blackmail and threats from the First Amendment's scope. What may be difficult, however, is the drawing of a workable distinction between protected expression and unprotected coercive words. Thankfully, in most cases, the issue is not likely to arise. For example, in the case of the Dennis defendants, whatever harm one might have thought the challenged expressive or associational activity could lead to, no one could reasonably have suggested that those words or activity were directly coercing anyone. At most, the fear was that the words would persuade others to harm or coerce. But even if one adopts the absolute protection model suggested here for unlawful advocacy in unconfined settings, situations will arise in which distinguishing between protected unlawful advocacy and unprotected coercive speech will not be easy to draw. Strong public advocacy of criminal activity may well give rise to fear in the listeners, and one must ask whether that fear is sufficiently coercive to exclude the expression from the First Amendment's protective scope. On the one hand, the First Amendment's protection cannot be reduced to the lowest common denominator by turning on the reactions and fears of every reader or listener. To allow a listener's or reader's disgust, unease, or even fear to justify suppression would cause havoc to the meaningful protection of free expression. On the other hand, at some point, a synthesis of the speaker's intent and the listener's reaction of fear or coercion will necessarily justify application of a coercive speech exception.

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There are two risks that must be avoided in drawing this distinction. Initially, it is necessary to avoid underprotection by mischaracterizing persuasive expression as coercive. But almost as important is the need to avoid the uncertainty and unpredictability that inevitably lead to the chilling of speakers and manipulative abuse by decision makers reviewing the constitutionality of attempted regulation. Thus, although not even the most categorical ex ante test is capable of avoiding all danger of manipulation in individual application, it is advisable to develop a test for distinguishing coercive threats from protected unlawful advocacy that at least keeps the uncertainty in specific application to a minimum. On the rare occasion that the Supreme Court has dealt with the issue, it has been highly reluctant to characterize expression as unprotected threats. It has considered the question on two occasions, Watts v. United States 279 and NAACP v. Claiborne Hardware Co. 280 In Watts, the Court refused to characterize as an unprotected threat to the life of the President the statement to a public crowd, made by a potential draftee, that "[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J. [President Lyndon Baines Johnson]." 281 The crowd had laughed at the statement. Finding the statement, under the circumstances, to constitute nothing more than political hyperbole, the Court overturned the defendant's conviction. 282 Although "[n]o other Supreme Court case has elaborated on or even applied the factors from Watts," 283 the Court returned to the issue of threats in Claiborne, with a brief footnote reference to Watts. The expression in question had been made in 1966 by Charles Evers, field secretary for the NAACP in Mississippi. On two occasions, he had publicly warned that any African Americans who broke the boycott of white merchants would have their necks broken. Although on one occasion his statement was ambiguous as to whether it was a direct threat or a warning of harm that might be inflicted by others, 284 on the other occasion Evers's statement was quite clearly a direct threat, asserting that "[i]f we catch any of you going in any of them racist stores, we're gonna break your damn neck. " 285 Nevertheless, the Court unanimously held that the statements did not constitute unprotected threats. Puzzlingly, in so holding, the Court noted that merely because "expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. " 286 Perhaps one can rationalize the Court's decision on the same grounds of political hyperbole as had been used in Watts 287 : under the specific circumstances, no one could reasonably have taken the threat seriously. No such finding appears to have been expressly made, however, and in any event, that fact would not seem to soften the Court's more general statement that speech intended to

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coerce does not automatically fall outside the First Amendment's scope. A statement intended to coerce is surely not properly characterized as political hyperbole. The answer may well be that an intent to coerce is not a sufficient condition for finding the existence of a true threat; rather, in addition the perception of a reasonable recipient of the communication must be that coercion is actually intended by the speaker. Although lower courts have on occasion spoken of an inquiry into whether the speaker should have reasonably foreseen that the statement uttered would be perceived as a threat by those to whom it was made, 288 other courts have focused their inquiry more on the perceptions of the reasonable listener. 289 One can debate whether in reality there is any distinction between the two inquiries. 290 In any event, both are troubling because they leave enormous room for case-by-case manipulation, a result to be avoided if at all possible. It is therefore important to add to these criteria an inquiry into whether or not the statement, in context, was used persuasively or coercively. As already noted, advocacy of unlawful conduct may often give rise to fear among those who hear or read the advocacy, if only indirectly. One cannot allow listener reaction, standing alolile, to revoke First Amendment protection. Therefore it makes sense to ask the decision maker to determine whether the challenged expression sought to persuade others to act (in which event it is appropriately characterized as advocacy) or rather threatens listeners with harm by the speaker or those under his control. As one commentator has wisely suggested, the constitutional test should inquire whether "the speaker explicitly or implicitly suggests that he or his co-conspirators will be the ones to carry out the threat. " 291 Admittedly, even this test leaves some room for case-by-case manipulation. However, it is far preferable to any test that omits that inquiry. The final inquiry under the selective categorization model concerns the treatment of informational, as opposed to persuasive speech. Although as a traditional matter unlawful advocacy is assumed to seek to persuade others to take illegal actions, on occasion speech that does no more than inform can reasonably be thought to proximately lead to unlawful conduct. For example, speech that tells listeners where to obtain illegal drugs 292 or how to cheat on one's taxes 293 has traditionally been classified as a type of unprotected unlawful advocacy. Nevertheless, one should distinguish between informational expression on the one hand and persuasive expression on the other, because they are by no means identical for First Amendment purposes. Helpful in understanding the distinction between the two forms of expression is the drawing of a contrast between the type of expressive activity allegedly punished in Dennis and the type of expressive activity as-

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sociated with the revelations of the decrypted Venona documents. The organizational activities and advocacy sought to be suppressed in Dennis fall within the persuasive category of expression; in contrast, no persuasive advocacy was involved in the Venona context. Rather, the "speech" consisted of nothing more than the communication of secret or classified information. The type of expressive political activity sought to be suppressed in Dennis falls near the heart of the First Amendment. Punishment of this type of expression undermines the respect for individual will that both that amendment and our societal commitment to democracy require, because its rationale is necessarily the fear that individuals exposed to free and open debate are incapable of deciding for themselves what is the best form of government and how to implement it. The information revealed by the American communists who were exposed in the Venona documents, in contrast, possesses none of these characteristics. Instead, it may appropriately be described as nothing more than a nonexpressive act-the conveyance of the nation's secrets to hostile powers. Even if one rejects this characterization, the espionage revealed in the Venona documents surely does not fall within the category of expressive activity that truly implicates the values sought to be fostered by the First Amendment. In assessing the wisdom, morality, and constitutionality of government treatment of American communists during the McCarthy era, then, the informational-persuasive distinction has significant import. In other contexts, the distinction's value may not be as immediately clear as it is in the context of the McCarthy era. Information can of course serve a dual function, both informative and persuasive, for the simple reason that information will often have the effect of persuading. For example, the statement, "the man in that jail murdered my mother" is, on its face, purely informative, yet in context, it may have as much or more persuasive impact than a direct urging to lynch the prisoner. Yet to allow government to characterize as unprotected unlawful advocacy speech that is on its face nothing more than informational could give rise to a pervasive chilling effect on the distribution of information that is potentially valuable on a number of levels. For these reasons, it makes sense to treat informational expressionat least in unconfined settings294-differently from the way purely persuasive advocacy is treated. Whereas persuasive advocacy in unconfined settings is to receive absolute protection under the selective categorization model, the test for the protection of informational expression must focus on a variety of considerations. The focus should, for the most part, be on a synthesis of four factors: (r) the likelihood that communication of the information will lead to illegal activity; (2) the potential harmfulness of the behavior to which the information is likely to lead; (3) the extent to

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which the public already possesses access to the information through alternative means; and (4) the potential value to the public of the revealed information. Each consideration is to be deemed a necessary condition to justify the removal of constitutional protection. Thus, when information on the Internet reveals how to craft a terrorist weapon but the same material may be readily acquired through the use of texts already available in the library, the fact that the conveyance of the information easily satisfies the first criterion should be deemed insufficient to justify loss of constitutional protection. Indeed, it is arguable that the third criterion should be deemed satisfied only when the information is contained in documents classified as secret by the government. The advantage of such an approach is its relative ease of application and the resulting limitation of the danger of case-by-case manipulation as a guise for ideologically based suppression. The risk in such an approach, however, is that not all information that is simultaneously inaccessible to the public is confined to classified documents. Numerous individuals who, as a practical matter, would never have learned the information may well be enabled to commit illegal acts as a result of the information's widespread communication by the speaker whom government seeks to punish. However, if it were ultimately decided that the "classified information" standard is insufficiently sensitive to security concerns, at the very least a high level of public inaccessibility would have to be shown to justify exclusion of the expression from the First Amendment's scope. Inclusion of the fourth factor-the potential value of the revealed information-is admittedly a highly risky strategy. Normally, it is not for the courts to gradate First Amendment protection of the basis of their subjective judgments of the value of regulated speech. In the context of informational expression regulation, however, inclusion of the value consideration should serve only as a one-way ratchet: a court is to inquire into the expression's potential public value if and only if application of the first three factors would lead to the validation of speech regulation. In such a situation, reference to the fourth factor could serve as a possible safety valve to constitutionally insulate the expression from suppression. For example, in the so-called Pentagon Papers case, New York Times Co. v. United States, 295 absent this fourth factor a court could conceivably have held the suppression unconstitutional, solely on the grounds that the previously classified information concerning the history of American involvement in Vietnam had potentially significant value to the public's assessment of a major political controversy. Application of the informational-persuasional dichotomy to individual cases may often be difficult to draw, for the simple reason that on many occasions a single statement will simultaneously convey information and

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urge action. In such a case, it is important for a reviewing court to sort out the different forms of expression contained in the speech sought to be suppressed and determine exactly which it is that the government seeks to punish. This was something the Fourth Circuit woefully failed to do in the so-called Hit Man Manual case, Rice v. Paladin Enterprises, Inc. 296 The court appeared to proceed on the assumption that it was dealing with a case of information distribution, because its opinion focused heavily on the harm flowing from the communication of information contained in the manual concerning how to commit a murder for hire. 297 From this perspective, the court's concern was that, but for the information he gleaned from the manual, the murderer would have been unable to commit the crime298-a conclusion, it should be noted, that was never really supported by the record. In any event, were one to test this decision from the perspective of the selective categorization model's informational category, it is clear that the case was wrongly decided. Under that approach, it is only if the information in question is highly inaccessible by other means, as well as seriously harmful, that the communication of the information is to be deemed unprotected. 299 The information revealed in the hit man manual, in contrast, was for the most part easily accessible, simply by watching several television murder mystery reruns. 300 Indeed, apparently the manual's author, who went by the name "Rex Feral," was in reality a divorced mother of two in need of cash who had never worked as a hit man. 301 According to one commentator, "[t]he content of Hit Man is a compilation of public domain information that the author took from 'books, television, movies, newspapers, police officers, [her] karate instructor, and a good friend who is an attorney.'" 302 What seems to have been at least as important to the Rice court in upholding the tort action as the importance of the information conveyed was the manual's potentially persuasive force. For example, the court pointed to the fact that the book seeks to reassure those who might feel guilt or remorse. 303 The court made reference to "the boldness of [the manual's] palpable exhortation to murder" 304 and noted that the murderer had been "steeled by [the manual's] seductive adjurations." 305 The court's concern, then, appears in significant part to have been the manual's purely persuasive value. To the extent this was so, under the selective categorization model the case must be viewed from the perspective of the unconfined advocacy category, and the court's opinion therefore rejected for failing to adhere to the absolute protection dictated for that category. Thus, by parsing the Fourth Circuit's opinion in Rice, one can see that improper judicial concerns over the expression's potentially persuasive impact, rather than concern over the communication of otherwise publicly inaccessible information, underlay the court's conclusion that the

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manual was to be denied First Amendment protection. Suppression motivated out of governmental fear that expression will persuade free-willed citizens threatens core notions of individual respect that underlie liberal democratic theory. At least in unconfined settings, where the speech and the illegal harm are not temporarily and physically connected, such suppression should not be tolerated. When understood in this manner, it is clear that the court in Rice undermined fundamental First Amendment dictates.

CONCLUSION

As is true of so many other historical aspects of the McCarthy era, viewing the period's regulation of unlawful advocacy through a First Amendment lens has important implications for our understanding of both the McCarthy era and the First Amendment. This constitutionalhistorical synthesis teaches that the revelations of the Venona documents should have little impact on the traditionally negative historical view of the government's persecution of American communists during the era, whether or not it should have a significant impact on our perceptions of the American communists of the period. Whatever the nonexpressive, unprotected criminal activities in which the defendants in Dennis may have engaged, the fact remains that the prosecutions against them were not brought for the purpose of punishing those activities. They were brought, rather, to punish the advocacy of ideas, without the slightest showing that that advocacy had proximately threatened physical violence or illegal behavior or in any way compromised the nation's security. This result constituted a fundamental violation of the First Amendment's core precept that government may not regulate the expression of ideas for no reason other than ideological repugnance. Modern anticommunist historians may well be correct in their assertions that the Comintern and Venona documents fully justify the widespread moral andl political disdain for American communists during the McCarthy era that conservatives have traditionally urged. But whether the individual communist defendants were morally worthy of our concern is completely beside the point when the issue turns to the question of First Amendment protection. It is not uncommon for First Amendment rights to play their most important role in protecting the expression of morally unworthy individuals. The constitutional concern should be for how our government behaved and for the ominous messages that governmental behavior sent to the populace during the era of governmental suppression of American communists. Nothing in the revelations of the

Unlawful Advocacy and Free Speech

Venona or Comintern documents, then, in any way alters the fundamental inconsistency between governmental action during the McCarthy era and the values of a free society. In addition to telling us a great deal about how to view the historical period, the constitutional-historical intersection provides important insights into the shaping of First Amendment doctrine and theory. Detailed examination of the Dennis trial demonstrates that any test for determining the constitutional protection of unlawful advocacy that turns heavily on a case-by-case, contextual inquiry leaves a dangerous amount of room for a fact finder to manipulate the evidence in order to disguise ideological suppression. In addition, the revelations of the Venona documents underscore an important contrast in types of expressive activity that has significant consequences for the shaping of unlawful advocacy protection. If nothing else is clear about the First Amendment's application to the McCarthy era, surely the passing of classified information to agents of a hostile power cannot be properly deemed the equivalent of persuasive advocacy, for purposes of free speech protection. One can use these historical insights to provide a foundation for the shaping of an entirely new approach to unlawful advocacy protection, what I have labeled the selective categorization model. This model takes the division among categories of expression gleaned from the DennisVenona contrast to the next level, by categorizing the remaining categories of unlawful advocacy and shaping different forms of constitutional protection for all of the recognized categories of unlawful advocacy. It is only by such selective categorization that the First Amendment can effectively accommodate all of the vital competing interests implicated in the regulation of unlawful advocacy.

CHAPTER FIVE

HUAC, The Hollywood Ten, and the First Amendment Right of N onassociation

Ring Lardner Jr. died at the turn of this century at the age of eighty-five. His passing was worthy of note for several reasons. First, he was the son of a famous sports writer and humorist. Second, he was a noted author and Hollywood screenwriter in his own right. 1 The primary reason Lardner's death was notable, however, is that he was the last of the famed "Hollywood Ten." This was the loosely connected group of Hollywood creative personalities who provided the focus of the infamous House Un-American Activities Committee (HUAC) in its highly publicized 1947 investigation into communist influence in the motionpicture industry. 2 All ten were subpoenaed to testify before the committee concerning their links to the American Communist Party; all ten refused to answer questions about their political affiliations; and all ten were held in contempt, jailed, and subsequently blacklisted by the motion-picture industry. 3 It is highly unlikely that Lardner-or any of the Hollywood Ten, for that matter-ever met James Dale, the respondent in the controversial Supreme Court decision in Boy Scouts of America v. Dale, 4 which recognized the First Amendment right of the Boy Scouts to expel a homosexual assistant scoutmaster who was a gay rights activist. 5 They are from very different generations and backgrounds. Yet to a certain extent, they have a great deal in common. Both personify many of the most troubling and complex issues of modern free speech theory. This is because both held sociopolitical views that many found deeply offensive, 6 and as a result, both were shunned by private individuals or groups. Each may have been the victim of the paradoxical, but nevertheless legitimate, application of the First Amendment right of nonassociation, under which an individual is punished because of his political beliefs not despite but be-

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cause of the First Amendment right of free expression. The legitimacy of this paradox derives from the fact that the First Amendment rights at stake are not those of the victim but rather those of the individuals who are punishing the victim because of his political views. Even on the level of constitutional theory, however, Dale and Lardner arguably differ in a number of important respects. First of all, Dale was apparently open about his views concerning homosexuality.? The affiliation of Lardner and the other members of the Hollywood Ten with the Communist Party of the United States of America (CPUSA), on the other hand, was by no means widely known by the public at large. It was only through the exposure of the Hollywood Ten's political connections by HUAC that the moviegoing public became aware of their membership in the Communist Party. Second, the private organization that chose to expel Dale was found by the Supreme Court to have as an underlying precept disdain for the practice of homosexuality, 8 although that factual issue was the subject of significant controversy. Thus, to force the Boy Scouts to include Dale could undermine the exercise of their right of active association by disrupting associational efforts toward this end and by demoralizing the membership that-one must presume from the Supreme Court's view of the facts-generally shared this sociopolitical value. The same problem did not apply to those who chose to boycott films made by the Hollywood Ten. One who chose to boycott films made by or with communists need not have been part of an active anticommunist political association. These two differences raise significant and troubling questions about both the rationale for and scope of the First Amendment right of nonassociation. The first difficult question to consider is whether the First Amendment right of nonassociation, as shaped by the Supreme Court in Dale, would actually have extended to the actions of those private individuals who shunned the Hollywood Ten, and eventually countless other members of the Hollywood community because of their current or past membership in the CPUSA. The answer is probably "no," because in fashioning the right of nonassociation, the Court drew exclusively on the line of decisions shaping the First Amendment right of association and developed the right of nonassociation as a protective corollary to that affirmative right. 9 Pursuant to this approach, the right is triggered only when the views of the excluded individual interfere with, or at least are inconsistent with, the ideological or normative precepts to which the private association was committed before the exclusion. 10 Because those who chose to boycott members of the motion-picture industry with connections to the Communist Party were not excluding those individuals from membership in any preexisting, politically or ideologically based association, presum-

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ablly the "protective corollary" rationale for the right of nonassociation used in Dale would not extend to the shunning of communists in the motion-picture industry by the public at large. It is this fact, however, that underscores the misguidedly truncated theoretical foundation of the right of nonassociation as developed in Dale. In addition to the affirmative right of association, the right of nonassociation should be seen as an outgrowth of a completely different aspect of the First Amendment universe: the line of cases recognizing a First Amendment right not to be forced to speak. 11 Such a recognition would extend the right of nonassociation to numerous instances of purely passive refusals to associate with those holding politically or ideologically offensive views. Thus, when a civic orchestra in a Chicago suburb chose to exclude Matt Hale, self-proclaimed founder of the racist and anti-Semitic World Church of the Creator, from its ranks, not because his musical talents were inadequate but rather solely because of his offensive political views, 12 a theoretically sound version of the right of nonassociation would extend to such behavior. There can be little doubt that the restrictive version of the right fashioned in Dale would not do so because the members of the orchestra were not associating for any political purpose inconsistent with Hale's ideology. Similarly, a Jewish merchant who refuses to hire an assistant for no reason other than her membership in the American Nazi Party is acting within the scope of his First Amendment right of nonassociation, even though the right as fashioned in Dale almost surely would not extend to such behavior. 13 Ironically, perhaps the best illustration of the passive version of the right of nonassociation occurred several years ago, when members of the Motion Picture Academy opposed conveying a lifetime achievement award to famed director Elia Kazan. Although their opposition ultimately failed, those who opposed the award did so not because they believed Kazan's directorial work to be unworthy, but rather for no reason other than that he had chosen to testify before HUAC against his former fellow communists. 14 Like those private citizens who chose to boycott films produced by members of the Communist Party in the I 9 5os, these members of the Motion Picture Academy sought to exercise their own First Amendment right of nonassociation. The second difference between the Hollywood Ten and Dale-the difference in the extent to which the parties sought to keep their views and affiliations private-raises even more complex and troubling issues of First Amendment theory. If one accepts the premise that private individuals during the I940s and I9 sos who found communism offensive had the First Amendment right to disassociate themselves from members of the Communist Party, admittedly a controversial proposition but one that

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provides a central element of my thesis, then presumably that right could not be exercised in a meaningful way without knowledge that another individual was, in fact, a member of the Communist Party. 15 One who publicized information about the communist affiliation of others, then, was in an important sense facilitating the listener's exercise of his First Amendment right of nonassociation. Thus, by exposing the communist affiliations of the Hollywood Ten and other members of the Hollywood community to the public at large, HUAC in a sense was facilitating the exercise of nonassociational First Amendment rights of those individuals who, because of their own ideological beliefs, wished to have nothing to do with any current or former member of the American Communist Party. If such a conclusion were reached, surely the result would turn much traditional scholarly thinking about the role of HUAC on its head, overturning the well-established view that many have of the committee. 16 Fortunately, for a variety of constitutionally based reasons, I ultimately reject the conclusion that HUAC's activities could have been justified as a means of facilitating the exercise of the right of nonassociationY Those reasons, however, may be sui generis to HUAC. Thus, rejection of that conclusion in no way automatically dispels the notion that under different circumstances, governmental agencies could justify exposure of private political affiliations on the grounds that such exposure helped listeners make associational judgments about the people exposed.18 Such a suggestion, however, would seem to directly conflict with the established First Amendment principle of privacy. That principle has two components: (I) the right to keep private one's political convictions and associations, 19 and (2) the right of anonymity for the expression of private individuals. 20 Recognition of a governmental authority to facilitate private nonassociational rights by exposing private political affiliations would appear inescapably to conflict with the First Amendment interests in preserving privacy and anonymity. Whether government should have such authority to expose a speaker's identity or private political affiliations is debatable. Although in some ways it would facilitate the exercise of nonassociational rights, the risks of chilling or intimidating speakers into silence would also be great. Recognition that the issue is even a close one, however, would represent a dramatic departure from long-established First Amendment thought. Yet it is just such a recognition advocated here. At the very least, the interest in facilitating exercise of the First Amendment right of nonassociation should be found to insulate from state regulation private efforts to disseminate information concerning the private political affiliations of individuals. Thus, whatever one thinks of them on a moral or political level, privately orchestrated blacklisting efforts on the basis of political or

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ideological viewpoint should be deemed to be a fully protected exercise of free expression. 21 In this chapter, I seek to explore these questions on several different analytical levels. As a matter of historical analysis, my analysis is intended to add a very different constitutional perspective on one aspect of the so-called McCarthy period, already in a state of scholarly flux among hi:;torians in recent years. 22 I seek to establish that the traditional view of the period-apparently held by both liberal and conservative historiansas a binary conflict between government and private victims (or villains, depending on one's ideological perspective) should be rejected. Instead, the period should be viewed as a trilevel conflict, involving government, private individuals who held controversial political viewpoints, and other private individuals who wished to shun those who held those controversial viewpoints. Recognition of the trilevel nature of the interaction dramatically alters long-established positions on the First Amendment debate about the blacklists. Traditionally, conservative constitutional and historical scholars have sought to justify governmental suppression of American communists on the ground that free speech interests must give way to the overriding governmental interest in preserving national security.23 Many liberal scholars, on the other hand, have attacked efforts to penalize communists during the McCarthy period as unconstitutional efforts to suppress unpopular political viewpoints. 24 By focusing on a third element generally ignored by both sides to the historical debate-namely, the "disassociational" efforts of private individuals to shun both intellectual and personal connections with anyone who was connected to the Communist Party-1 hope to add an entirely new dimension to that debate. On a more abstract, theoretical level, by focusing on the example of the Hollywood blacklist, I seek to make a considerably broader statement about the scope and normative origins of the First Amendment right of nonassociation. By grounding that constitutional right in the First Amendment right not to be forced to speak, rather than as a means of facilitating the right to associate, I provide a foundation far more expansive than the narrowly based right of nonassociation recognized by the Supreme Court in Dale. 25 This chapter explores the implications of the recognition of this broader right of nonassociation for both governmental and private efforts to expose previously private political affiliations. Recognition of a First Amendment right not to associate directly with ideas that an individual finds offensive or with those who hold those ideas logically dictates recognition of a corresponding First Amendment interest in discovering which individuals hold those political views. Absent access to such information, the abstract right not to associate will be,

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at best, of limited value, and often would be all but meaningless. The first part of this chapter briefly describes the events surrounding the Hollywood Ten, HUAC's investigation into communist influence in Hollywood, and the industrywide blacklist that developed largely as a result of the committee's revelations. The next part explores the theoretical underpinnings of a First Amendment right of nonassociation. Using both the experience of the Hollywood Ten and the Dale case as illustrations, this part shapes a nonassociational right grounded in the right of the individual to disassociate herself from purely cognitive messages which she deems offensive. The final part explores the logical connection between the exercise of the nonassociational right, and the facilitation of the performance of that right, with governmental or private exposure of individuals' political affiliations.

HUAC AND THE INVESTIGATION OF HOLLYWOOD

By 1947, the Communist Party had tumbled from the height of its success after World War II to near decimation. Before that date, the Conference of Studio Unions (CSU), a communist-dominated union of screenwriters, technicians, studio painters, and machinists, had fought two successful strikes against Walt Disney Studios and Warner Brothers Studios. The CSU also was involved in a bitter jurisdictional dispute against the competing International Alliance of Theatrical Stage Employees (IATSE), which was led by the staunchly anticommunist Roy Brewer. 26 This jurisdictional battle and subsequent strike against the producers proved among the bloodiest in America's labor history, as the studios employed scabs, thugs, tear gas, fire hoses, and private police and fire departments to disrupt picket lines and break the strikeP After the strike, the producers mobilized and, with Brewer's connections in Washington, were welcoming investigations by the FBI and HUAC in order to combat "the growing impression that this industry is made up of, and dominated by, Communists, radicals and crackpots. " 28 HUAC was originally established by Congress in 193 8 as a select committee to investigate foreign propaganda. Congress made it a standing committee eight years later. 29 Under its authorizing resolution, the committee was directed to investigate (1) the extent, character, and objects of un-American propaganda activities in the United States, (2) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (3) all other questions in relation thereto that would aid Congress in any necessary remedial legislation. 30

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Despite its authorization to investigate all types of domestic and foreign propaganda, HUAC originally showed little interest in the motionpicture industry. Although a California state investigating committee and a state grand jury had held hearings during the early 1940s to determine whether the motion-picture industry was being infiltrated by subversive elements, neither investigation had uncovered wrongdoing or generated much publicity. 31 Indeed, until 1945, the Communist Party had become "almost an accepted element of American society" by actively participating in the Popular Front campaign against fascism, helping build the Congress of Industrial Organizations, and backing New Deal antipoverty programs. 32 By 1947, however, the tide of public opinion had turned. Within Hollywood, the studio strikes had hardened the resolve of producers, actors, and IATSE leaders to purge themselves of communist influences. 33 These feelings comported with the wave of anticommunism sweeping the nation.34 According to leading historians, a variety of factors contributed to the nation's transformation of public opinion: conservative backlash against more than a decade of New Deal policies, isolationist and xenophobic sentiments, domestic troubles produced by massive labor unrest, ob:iections among Christians and Jews to the Communist Party's atheist viewpoints, and revelations of the Soviet Union's wartime atrocities and internecine purges. 35 Another significant factor was that although a majority of Americans had supported the Soviet Union during World War II, the onset of the cold war transformed this former ally into "the single remaining challenger to United States hegemony in the postwar world. " 36 The United States was rapidly becoming the postwar defender of the free market system, and the Soviets now represented a grave threat to a democratic way of life. Indeed, commentators have argued that it is for this reason that even otherwise liberal organizations, such as the Americans for Democratic Action, the American Civil Liberties Union, and the American Committee for Cultural Freedom, revised their charters to prevent communists from becoming members. 37 In the spring of r 94 7, HUAC's public interrogations revealed that Hollywood composer Gerhart Eisler was an international communist spy. 38 This revelation fueled anxieties about communist infiltration into all areas of the American entertainment industry and raised concerns about Soviet attempts surreptitiously to subvert the minds of common citizens through domestic propaganda. 39 To combat this possible national security threat, Congress increased HUAC's annual appropriations budget from $so,ooo to approximately $3oo,ooo, and its committee members set their sights on Hollywood. 40 Eisler's hearings precipitated HUAC's subsequent, broader investiga-

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tion of Hollywood for two reasons. First, the hearings attracted the widespread attention of the media, especially the fledgling television broadcasters. Committee members received tremendous publicity while pursuing communists, 41 thereby gaining national attention while simultaneously furthering their own political careers. In addition, HUAC discovered that Eisler had written music for several screenplays, thus providing some direct evidence of a possible connection between the Communist Party and the film industry. 42 Just as the federal government began instituting loyalty oaths and purging itself of potential subversives, the influential Mississippi Democratic Representative John Rankin was eager to root out subversion within the motion-picture industry-an industry he termed "the greatest hotbed of subversive activities in the United States. " 43 Several committee members and investigators traveled to Hollywood in May 1947, where they held closed session hearings in which various writers, directors, and producers discussed what they believed were possible communist activities in the industry. 44 Although the committee never released the testimony recorded during these sessions, it returned to Washington warning about Hollywood's menacing communist infiltration.45 On September 21, 1947, the committee subpoenaed forty-one individuals to testify on this same topic. 46 The hearings began almost one month later, and during five days, such individuals as producers Jack L. Warner and Louis B. Mayer, novelist Ayn Rand, actor Ronald Reagan, and writer Morrie Ryskind testified against the evils of communism and identified individuals who they believed were attempting to insert subversive communist ideas into motion pictures. 47 Over the course of five days, a total of twenty-two witnesses eventually denounced over 100 men and women as members of the Hollywood branch of the Communist Party. 48 At this point, HUAC called John Howard Lawson, the prominent screenwriter, founder and president of the Screen Writers Guild, and head of the Hollywood branch of the Communist Party. 49 Almost immediately, HUAC counsel Robert Stripling confronted Lawson with the two questions that would be nicknamed the "$32 and $64 questions": "Are you a member of the Screen Writers Guild?" and "Are you now, or have you ever been a member of the Communist Party of the United States?" 50 Lawson and his fellow screenwriters and directors, later dubbed the "Hollywood Ten," refused to answer the questions. 51 HUAC denied all of their requests, except Albert Maltz's, to read statements challenging the committee's authority to pose the questions as an infringement upon their First Amendment rights of anonymous association and freedom of speech. 52 Lawson and committee members then became embroiled in a

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shouting match in which Lawson showed his utter contempt for the committee, summing up his attitude with the statement, "I am not on trial here, Mr. Chairman. This Committee is on trial here before the American people. Let us get that straight." 53 Lawson was then forcibly removed from the witness stand as Stripling read evidence into the record attesting to Lawson's involvement in the Communist Party. 54 Contempt citations soon followed against Lawson, as they did against each member of the Hollywood Ten-Dalton Trumbo, Albert Maltz, Alvah Bessie, Samuel Ornitz, Herbert Biberman, Edward Dmytryk, Adrian Scott, Ring Lardner Jr., and Lester Cole. 55 Lawson's behavior irritated most movie producers, the American public, and even his supporters within the industry. 56 Instead of appearing as patriotic defenders of the First Amendment, Lawson and the remaining members of the Hollywood Ten were quickly identified as smug revolutionaries, seeking protection from the nation they were trying to subvert.57 Later that afternoon, attorney Eric Johnston, speaking on behalf of the studios, showed his support for the committee's investigation: "[A]n exposed Communist is an unarmed Communist. Expose them .... I have never objected to your investigating Hollywood .... I told you I welcomed it, and we sincerely do." 58 The Hollywood Ten now met a uniformly disapproving public, as moviegoers were left "with the idea that Hollywood was a nest of Red agitators." 59 The threat of boycotts from customers who were offended by the notion of paying money to support communist sympathizers soon led to the "Waldorf Statement," in which every major studio announced it was firing the Hollywood Ten and pledged not to "knowingly employ a Communist or a member of any party or group which advocated the overthrow of the Government of the United States. " 60 So began the blacklist. But although it was first implemented by the major studio owners, it was maintained by the vigilance of private citizens' groups. The most vocal and visible source of private support was the American Legion, which published monthly newsletters exposing Communist Party members and the movies with which they were associated.61 War veterans were not alone in their views, however. "All strains of American anticommunism were represented in this grassroots movement: liberal intellectuals, labor unionists, religious leaders, conservatives, and counter subversives." 62 In all, less than one month after the Hollywood investigation, citizens in at least three states had organized boycotts outside local movie theaters, the American Legion was threatening to begin similar boycotts nationwide, and the governments of Spain, Chile, and Argentina were threatening to refuse to accept films produced by studios that employed the Hollywood Ten. 63 Those few the-

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aters that carried films associated with the Hollywood Ten met throngs of disapproving picketers. 64 Attempts by individual screenwriters to produce independent films found almost no sources of financial support. 65 Ultimately, for more than a decade, no open Communist Party member could obtain work as a screenwriter, actor, or director at any Hollywood studio. 66 The blacklist, indeed, reached far and wide.

THE HOLLYWOOD BLACKLIST AND THE RIGHT OF NONASSOCIATION

The Hollywood blacklist of the late 1940s and early 1950s has been traditionally viewed by most historians and constitutional scholars as a travesty of political and intellectual freedomP Pursuant to this view, the blacklisted individuals were deprived of their livelihood for no reason other than the unpopularity of their political beliefs. Such deprivation, the argument proceeds, breeds intellectual timidity and imposes a pall of political orthodoxy on society, in direct contravention of the precepts of both free speech and democratic theory. 68 Under the well-established principle of "epistemological humility," which is central to both concepts,69 individuals may not be penalized for the substance of their views or beliefs. To tolerate such chilling of individual viewpoints both retards the democratic process and undermines the intellectual dignity and autonomy of the individual, the argument goes. These concerns are not in any way assuaged by interests of national security, the reasoning continues, because even if one assumes that in certain contexts American communists were engaged in activities of espionage or subversion,7° there has never been any indication that the screenwriters, actors, or directors on the Hollywood blacklist were directly involved in such activity, or in any event that their punishment was imposed because of such activity. 71 In many ways, such arguments draw on the very foundation of our nation's normative democratic tradition. But when used to condemn the Hollywood blacklist, these arguments suffer from a fatal oversimplification of the democratic process, as does much of the traditional liberal attack on this aspect of the historical period. For the most part, scholars have viewed the McCarthy era from a two-dimensional perspective, seeing the essential conflict of the day as pitting the private victims (including, at the very least, members of the CPUSA and arguably extending to include so-called fellow travelers and perhaps even any individual on the political left) against a government committed to suppressing and punishing the holding of such views. In reality, the period involved not

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merely a two-dimensional conflict but rather a triangular interaction of three competing forces: (I) the government, (2) the American communists and fellow travelers, and (3) private anticommunists. From the perspectives of constitutional and political theory, there may be all the difference in the world between categories I and 3. How government treats individuals because of their political views, of course, has enormous implications for the constitutionally protected right of free expression, because governmental penalization of private individuals or entities on the basis of political beliefs contravenes core notions of First Amendment doctrine and theory. 72 How private individuals react to other private individuals because of political viewpoints, however, gives rise to very different constitutional issues. To understand the point in the context of the Hollywood blacklist, it is first necessary to examine the nature of anticommunist efforts in the United States during the mid-twentieth century. It is not uncommon for modern historians to view American anticommunism as a McCarthyistic monolith. 73 Under this view, manipulative politicians are considered interchangeably with right wing neofascists and powerful capitalistic interests in their efforts to suppress leftist political activity. In reality, however, the situation was considerably more complex than that. The anticommunist movement was actually composed of different groups of individuals, often separated by a wide variety of emotional, ideological, and ethnic factors. It is reasonable to suggest that anticommunism could be divided into five often dramatically different subcategories, each driven by a distinct purpose or goal: (I) conservative anticommunists, (2) liberal anticommunists, (3) socialist anticommunists, (4) religious anticommunists, and ( 5) manipulative anticommunists.74 The conservative category consisted of private individuals who condemned communism because its economic philosophy was diametrically opposed to the free market capitalism that they valued. Liberal anticommunists-a category that included such prominent figures of the day as Arthur Schlesinger Jr., Eleanor Roosevelt, and newspaper editor James Wechsler-virulently opposed the terror tactics and authoritarianism of the Stalinism of the Soviet Union and condemned American communists because of their avowed association with and support for Stalin's brutally tyrannical regime. 75 Also included in this category were union officials who-quite realistically-feared that communists were seeking to coopt the U.S. labor movement, thereby significantly undermining the movement's national credibility and pushing it toward a commitment to the goals of international communism. 76 Socialists, on the other hand, were bitter opponents of American communists because of the competition between the two political organiza-

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tions for the allegiance of the political left in the United States and what they deemed the underhanded tactics often used by communists in the course of that competition. 77 Religious anticommunists were, for the most part, either immigrants from Eastern Europe or those who traced their origins to that area of the world. They were Catholics who found communism abhorrent to their strongly held religious views and who deeply resented the political terror and oppression that the Soviet regime had imposed throughout Eastern Europe. 78 Manipulative anticommunists, in contrast, were primarily government officials who-like the man for whom the period is today known-in reality had relatively little interest in stopping the spread of American communism but sought to make use of the issue in order to manipulate popular political opinion for the purpose of benefiting their own political careers. 79 Each group, then, had its own reasons for abhorring communism, many of which were deeply felt, going to the core of an individual's most strongly held beliefs and emotions. It must be emphasized that to suggest that many individuals in American society had compelling reasons for finding communism to be deeply offensive on moral, ideological, or religious grounds in no way legitimizes either governmental suppression of procommunist association or expression or governmental penalization of individuals for holding procommunist beliefs. If government were allowed to suppress or penalize expression on the grounds that it was found hurtful by private citizens, an intolerable heckler's veto would result, enabling those in power to suppress the expression of any viewpoint their supporters deem offensive. An attempt to determine how private individuals who find particular views to be abhorrent or offensive are to react to those who express or associate with those views, however, gives rise to a conceptually distinct area of First Amendment theory involving the private right of nonassociation. Recognition of the complex and significant sociopolitical distinctions among the different groups of anticommunists leads to a better understanding of the scope and theoretical origins of the nonassociational right. Before exploring those theoretical implications, however, it is necessary to focus on a preliminary issue that intertwines constitutional and political considerations-one that is properly grounded much more in the latter than in the former. The question concerns the political or moral disdain that many today seem to have for either the substantive views or tactics of the anticommunists of the 1940s and 1950s. 80 One may reasonably debate the accuracy of this widely held view. 81 But for present purposes, that issue is besides the point. Just as the First Amendment is widely acknowledged to deny government the power to regulate expression selectively on the basis of political viewpoint, 82 so too must such

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considerations be excluded from the shaping of First Amendment doctrine. Although Herbert Wechsler's "neutral principles" approach to constitutional theory 83 has come under significant modern attack, 84 if there is one area of constitutional law in which adherence to its precepts is essential, it is in shaping the structure of First Amendment protection. Otherwise the First Amendment would degenerate into little more than a political tool to advance one viewpoint over another. Thus, in the exposition of the theoretical foundations of the First Amendment right of nonassociation and the application of that analysis to the Hollywood blacklist, it is essential that the principle of viewpoint neutrality be kept in mind. As one considers the First Amendment implications of the politically motivated boycott in the film industry, a helpful device would be to substitute for the term communist the words Nazi, racist, anti-Semite, gaybasher, or any other political or ideological characteristic that the reader deems offensive. The point, in other words, is that in measuring the constitutional protection for the private blacklisting of communists, one must always be aware of the dictates of principled constitutional analysis: whatever rules one chooses to adopt concerning the private shunning of communists must logically apply equally to similar actions taken against any political or ideological grouping.

THE THEORETICAL ORIGINS OF THE FIRST AMENDMENT RIGHT OF NONASSOCIATION

The Active and Passive Versions of the Right of Nonassociation Viewing the right of nonassociation through the lens of the private anticommunism of the 1940s and 1950s does much to assist in understanding the concept's constitutional origins and theoretical scope. Presumably no one today reasonably doubts that First Amendment protection prohibits governments from penalizing the views of conservative, liberal, socialist, or religious anticommunists, much as it protects the beliefs and opinions of the communists themselves. The question becomes, then, whether the First Amendment protection that applies to the actual holding of anticommunist views extends also to the act of shunning individuals who hold the opposite viewpoint. The position taken here is that, properly understood, the right of nonassociation applies to such acts. Moreover, although the Supreme Court in Dale

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properly extended the theoretical reach of the nonassociation right to the Boy Scouts, 85 its rationale for doing so was unnecessarily and unwisely limited, thereby threatening fundamental nonassociational rights in contexts not included within the scope of that limited rationale. In Dale, the Court found the conceptual and historical basis for the right of nonassociation to be a part of the right of affirmative association. 86 On a superficial level, at least, the reasoning seems irrefutable: ( r) an individual possesses a First Amendment right to associate for political purposes,87 (2) that right may be seriously undermined were those who chose to associate for a particular political purpose required to include within their association those who held views that were antagonistic to that political purpose, and therefore (3) a right of nonassociation must be recognized in order to protect the affirmative right of association itself. 88 The problem with this logic, however, is its incompleteness. It fails to acknowledge the many other contexts in which a right of nonassociation is properly recognized, for that right may be important in many instances, even when there exists no corresponding affirmative exercise of the right of political association. 89 This theoretical truncation can be effectively demonstrated by considering the situation of the private anticommunists. In certain contexts, the reasoning of the Dale Court would satisfactorily have protected the nonassociational interests of anticommunists. For example, when liberal anticommunists formed the Americans for Democratic Action (ADA) to provide an organized liberal alternative to the communists and expressly opposed the CPUSA, 90 the Dale Court's logic would have prohibited government from requiring that the ADA admit communists: to force the organization to admit those who held the very views the organization was formed to oppose would effectively gut the exercise of the affirmative right to engage in political association. The same reasoning would presumably apply to invalidate hypothetical governmental efforts to require the Socialist Party or anticommunist labor unions to admit communists to membership, 91 as well as to the American Civil Liberties Union's decision to exclude avowed communist Elizabeth Gurley Flynn from its board of directors. 92 But in other contexts-including the Hollywood blacklist-the Court's logic is inapplicable. When private individuals shun other private individuals because of the offensiveness of their political views, such actions will often not be ancillary to acts of affirmative political association, but rather merely freestanding negative choices growing out of religious, ideological, or sociopolitical beliefs. 93 The "ancillary protection" reasoning adopted in Dale would naturally be of no use in rationalizing an extension of the right of nonassociation to such actions.

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It is perhaps arguable that the right of nonassociation should not extend to freestanding acts of political shunning. If so, then it would of course not be necessary for the Court to extend the rationale it adopted in Dale. The argument in support of this view would proceed in the following manner: although private individuals have a First Amendment right to possess anticommunist beliefs, First Amendment theory does not dictate a corresponding right to take actions on the basis of those assumptions. For example, an individual presumably has the First Amendment right to hate homosexuals; no one could reasonably suggest, however, that he therefore possesses an ancillary free speech right to commit ass:ault and battery on a homosexual because of those beliefs. Similarly, an individual presumably may possess a First Amendment right to believe that the races should be segregated in public accommodations. Again, this does not imply a corresponding free speech right to exclude African Americans from her restaurant, in contravention of state or federal public accommodations civil rights laws. 94 The difference between the category of belief on one hand, and actions taken on the basis of that belief on the other hand is simply the well accepted-although admittedly not always so easily applied-constitutional dichotomy between constitutionally protected speech and unprotected conduct. 95 Although actions that are not themselves directly expressive may be protected under the umbrella of the First Amendment when they directly facilitate such expression (as in the case of affirmative political association), to extend the right of nonassociation to acts of shunning on the basis of political belief, the argument concludes, would improperly extend the constitutional protection of thought and expression into the world of conduct. Surely there is force to this argument in certain contexts. For example, to suggest that the constitutional protection of an individual's belief in racial discrimination logically subsumes the act of racial discrimination would be to seriously pervert the concept of free expression. But it would be incorrect for that reason to conclude that all acts of politically based shunning are more appropriately viewed as unprotected conduct than protected expression. To understand the subtle but significant differences in relevant circumstances between protected and unprotected situations, it is first necessary to ground the right of nonassociation within the conceptual and doctrinal framework of First Amendment thought. The task, in other words, is to explain the theoretical origins of the right of nonassociation. In so doing, we will be able to comprehend both why the right properly extends to certain acts of politically based shunning and how we are to determine the differences between the protected and unprotected categories of such actions.

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Exploring the Constitutional Origins of the Right of Nonassociation As previously explained, it is perfectly reasonable to rationalize a portion of the right of nonassociation as a means of protecting and facilitating the affirmative right of political association, as the Dale Court did. What the Court failed to discuss-perhaps because it did not need to in order to extend First Amendment protection in the case before it-was the obvious conceptual parallels between the right of nonassociation and the well-established First Amendment right not to speak. On their face, both concern a negative version of what is traditionally viewed as a right to engage in affirmative behavior. But the right not to speak has never been inextricably linked to the exercise of an affirmative right to speak. On the contrary, in most of the cases in which the Supreme Court has recognized the constitutionally protected status of the right not to speak, there was never a suggestion that the governmentally forced expression in question would somehow interfere with an individual's ability to state affirmatively her own views under the circumstances of the particular case. 96 Instead, a private individual was recognized to have a First Amendment right to be completely silent. 97 Exploration of the theoretical rationales for the recognition of such a right under the First Amendment's umbrella provides an equally sound rationale for recognition of a corresponding First Amendment right not to associate, even where the right is not exercised as a means of protecting affirmative acts of political association. The troubling aspect of reliance on the First Amendment right not to speak as the basis for a passive right of nonassociation is that the Supreme Court has never adequately explained the theoretical rationale for the extension of First Amendment protection to what is not, at least superficially, the same activity as affirmative expressive behavior, traditionally deemed to be at the heart of the First Amendment protection. If one were to search for such a rationale, 98 it would be appropriate to focus on the manner in which forced expression demoralizes the individual when the views expressed are contrary to or inconsistent with the speaker's own beliefs. Through this process, the government is able to break down the individual's intellectual and moral integrity and render her less of an independently functioning and free-thinking human being. Forced speech, then, is appropriately deemed to represent a governmentally manipulated type of cognitive dissonance, a psychological process in which an individual forced to associate with particular viewpoints for a sufficient period of time subconsciously adopts those positions as his

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own. 99 Indeed, to acquire and maintain public compliance, totalitarian regimes have often attempted to destroy the individual's mental autonomy through constant exposure to propaganda and forced repetition of the regime's values. 100 Thus, forced speech is inconsistent with the fundamental tenets of mental autonomy and intellectual freedom that are so inherently intertwined with liberal democratic theory's commitment to representationalism and accountability. 101 Because the First Amendment right of free expression functions as a part of a symbiotic relationship with the concept of democracy, it is appropriate to view that protection as the facilitator and protector of basic values central to democratic theory. It follows, then, that the First Amendment should be construed to prohibit governmentally coerced private expression, which threatens the foundational premises of liberal democracy. The First Amendment right of passive nonassociation is appropriately derived from the premises underlying the prohibition on forced expression. Like forced expression, governmentally forced association with those having political viewpoints or ideologies found offensive by the individual risks demoralization as well as cognitive dissonance and breaks down the individual's mental autonomy and intellectual integrity. The fact that absent the forced association, the individual had no intent to affirmatively associate with others for the purpose of furthering his beliefs should be no more relevant than is the fact that the individual forced to express herself had no plans to express herself in a manner different from th:llt contemplated by the government. 102 Admittedly, the transition from forced expression to forced association is not a perfect one because-unlike forced expression-forced association necessarily implicates at least some level of nonexpressive conduct, in rhat it has a direct and nonexpressive impact on the individual who has been shunned. Thus, extending First Amendment protection against forced association runs the risk of contravening the fundamental speechaction dichotomy that is a central element of First Amendment jurisprudence. This of course is a problem not present when pure expression is invollved. Yet this potential difficulty applies with just as much force to the recognition of an affirmative First Amendment right to associate: an individual's decision to associate with another, even for purposes of political expression, necessarily involves nonexpressive acts having nonexpressive consequences. Yet the Supreme Court has not hesitated to extend full First Amendment protection to such behavior. Thus, the Court has already concluded that the associational choice is to be viewed as fully protected expressive activity when intertwined with the furtherance of ideological beliefs.

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CATEGORIZING PASSIVE NONASSOCIATION BEHAVIOR

A Conceptual Overview This analysis is not intended to suggest that all private decisions to shun others should be characterized as constitutionally protected expressive activity. Unfortunately, the situation is considerably more complicated than that. To better comprehend the nature of the speech-conduct intersection in the context of private passive nonassociation, it is helpful to view private shunning behavior on three different levels, and then to determine the degree of First Amendment protection the behavior is to receive by placing the behavior within one of these three levels. The levels can be characterized in the following manner: (1) cognitive/communicative nonassociation, (2) cognitive/interpersonal nonassociation, and (3) noncognitive/interpersonal nonassociation. Clearly, nonassociational behavior falling in the first category receives full First Amendment protection, whereas behavior placed in the third category is denied First Amendment protection. Behavior falling within the second category represents more of a hybrid form of activity that combines significant elements of both expressive and nonexpressive behavior. Such nonassociational activity is therefore arguably capable of classification as either protected expressive activity or unprotected conduct. However, it is my view that overall it makes sense to extend full First Amendment protection to behavior classified under the second heading. The three levels are distinguished on the basis of two potential variables: the reason for the decision to shun (the "reason" variable), and the nature of the personal interaction being shunned (the "interaction" variable). The "reason" variable concerns the extent to which the choice to shun has been made because of the viewpoints, ideologies, or beliefs held by the shunned individual, as opposed to a noncognitive characteristic or quality that the shunned individual possesses. The former are described as "cognitive" reasons and the latter as "noncognitive" reasons. The "interaction" variable turns on the particular contact that the shunning party wishes to avoid. The options under this variable include "communicative" and "interpersonal" avoidance. For example, a person may choose to avoid interacting with another individual by not listening to her or by refusing to read works written by that person ("communicative" shunning). Alternatively, an individual may avoid interacting with another person on noncommunicative levels, for example, by refusing to work alongside her, by not engaging in recreational or social activities with that person or by refusing to purchase the person's product or service ("interpersonal" shunning).

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Cognitive/Communicative N onassociation When an individual declines to listen to, view, or read works written by another individual because of the offensiveness of the positions expressed in the other's works, the behavior falls within category one: cognitive/communicative nonassociation. In this category, the reason for the nonassociational activity is cognitive (that is, a dislike for the views, belliefs, or ideology of the shunned individual) and the nature of the interaction shunned is communicative (that is, an exposure to the communication of the shunned individual's views and ideas). This category of nonassociation is by far the closest, both conceptually and practically, to the category of forced speech. If one accepts the precept that forced speech violates the First Amendment, the conclusion is virtually inescapable that forced listening is equally unconstitutional. Imagine, for example, a situation in which government has ordered citizens, under penalty of fine or imprisonment, to attend government-run political indoctrination classes. Such forced exposure to ideas is inconsistent with the dictates of the First Amendment. 103 Yet if that is true, then allowing government to force private citizens to listen to or read the views of other private citizens would have to be deemed equally unacceptable. Thus, forced association with ideas expressed by private individuals that the listener finds offensive unquestionably violates the free speech guarantee. 104 Noncognitive/I nterpersonal N onassociation At the other extreme, the third category of nonassociation should be deemed to fall outside the free speech guarantee. Noncognitive/interpersonal shunning consists of situations in which an individual chooses not to associate with another individual in a noncommunicative manner on grounds other than the viewpoint, belief, or ideology of the shunned individual. For example, an individual's desire not to serve African Americans at his restaurant does not fall within the nonassociational protections of the First Amendment. Just as a person who has a First Amendment right to advocate violent overthrow 105 does not, for that reason, automatically possess a First Amendment right actually to attempt overthrow, neither does an individual have a free speech right to discriminate on noncognitive grounds simply because she has a First Amendment right to believe that such discrimination should be permitted. Such actions do not implicate the cognitive-communicative matrix that is the essence of the concept of free expression. By way of analogy,

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consider the following hypothetical alternatives: (r) an individual pickets a restaurant with a sign saying, "Jews aren't fit to eat here," and (2) a restaurant owner places a sign in the window of her restaurant saying, "No Jews Allowed." The first hypothetical is an example of pure expression, 106 at least if one assumes that the sign is not part of a broader pattern of physical intimidation. The sign on the door, in contrast, is not expressive behavior except in the most incidental sense. Rather, the sign is merely the outgrowth of pure conduct: the exclusion of members of a particular ethnic, racial, or religious group. Admittedly, the speech-conduct distinction does not avoid all of the complexities in applying the noncognitive/interpersonal category of nonassociational behavior. Initially, a factual issue may arise as to the true motivation for the shunning: is it actually grounded in cognitive offensiveness (in which event the behavior is properly classified as cognitive/interpersonal nonassociation and therefore protected), or is it instead based on noncognitive characteristics? As Dale illustrates, however, that disputed factual issues arise in the application of the right of nonassociation is not automatically fatal to the existence of the right; it is simply up to the court to resolve these factual disputes through the use of traditional fact-finding processes. 107 More troublesome is the often ambiguous crossover between cognitive and noncognitive qualities. For example, could an individual persuasively argue that he finds the idea of racial integration offensive and therefore choose not to associate interpersonally with any one who believes in that concept? Assume that he further argues that because all African Americans believe in integration, he wishes to exclude them, not because of the noncognitive factor of their race, but rather because of the cognitive factor, their belief in integration. This hypothetical is actually not all that difficult to resolve because an equation of African Americans with the category of those who believe in integration is surely underinclusive and may even be overinclusive: many whites believe in integration, yet the restaurant owner is presumably not also excluding them, and it is conceivable that some African Americans do not believe in a system of legally forced integration, yet he is choosing to exclude them in any event. Arguably, decisions to shun members of a recognized group that possesses simultaneously both cognitive and noncognitive qualities would be more ambiguous. For example, a member of a religious group may share both the noncognitive characteristics of religious practice and the cognitively based beliefs to which that religious group is committed. An individual who seeks to shun interpersonal interaction with members of the religion could conceivably argue that the rationale for the shunning is purely cognitive-that is, the offensiveness of the religion's official be-

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lids-rather than noncognitive-that is, the very fact that the shunned person practices a particular religion. However, it would be incorrect automatically to assume that every member of a religious group agrees with every precept adopted by her religion. For example, not all Catholics are against abortion, although the Catholic Church officially opposes abortion; many Jews may not believe in continuation of the state of Israel, even though the majority of them do. Therefore, it is reasonable for government to refuse to allow an individual to automatically use membership in a religion as a surrogate for a set of cognitive qualities. The problem may become considerably more complicated where the individual, on the grounds of cognitive distaste, effectively imposes a noncognitively based form of shunning. In other words, situations may arise in which the individual's selection of cognitive characteristics will necessarily and proximately lead to shunning on the basis of noncognitive characteristics. For example, an individual seeks to shun all those who believe in integration, with the result that virtually all African Americans are excluded. It might well be appropriate for government in such situations to "pierce the veil" of such discrimination and treat it as an unprotected, noncognitive exclusion rather than as a protected, cognitively grounded exclusion. The biggest uncertainty in implementing the cognitive/noncognitive dichotomy as part of the First Amendment right of nonassociation arises not in the context of the passive version of the right, but rather in its narrower active version, like that recognized in Dale. In what I describe as its "active" version, the right of nonassociation is viewed as a type of ancillary protector of the affirmative right of political association: individuals have a First Amendment right not to associate with other individuals in situations in which doing so would effectively undermine their ability to associate affirmatively for the purpose of achieving predetermined political ends. 108 In this doctrinally established version of the right, the issue could easily arise whether the liberty of nonassociation extends to noncognitive qualities as well as to cognitive ones. It is clear that the active version of the right necessarily includes the authority to exclude those who do not share the association's normative political or ideological vision. It is not entirely clear, however, whether, in its active form, the right of nonassociation also includes the authority to exclude on the basis of noncognitive qualities-for example, race, religion, gender, or sexual orientation-when the predetermined political or ideological precept linking those in the active association is in opposition to those who possess that very quality. For example, the issue would arise whether the association "Gay-Bashers of the World" could constitutionally be required to admit homosexuals or whether "Anti-Semites Anonymous" could con-

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stitutionally be required to admit Jews. Under the cognitive/noncognitive dichotomy urged here in shaping the passive version of the nonassociation right, the organizations would be allowed to exclude those who rejected their opposition to the particular groups, but would not have a corresponding right to exclude solely on the basis of possession of the noncognitive quality in question. In Dale, the Court did not appear to recognize the existence of this subtle but potentially important distinction between cognitive- and noncognitive-based exclusion in the context of what I have called active nonassociation. As a practical matter, it is not clear whether resolution of this ambiguity would have made much difference in shaping the Boy Scouts' First Amendment right. Even if the right included only the power to exclude on cognitive grounds, it would perhaps not be unreasonable to assume that any individual who practiced homosexuality also believed in the moral acceptability of the practice. On the other hand, such an equation would surely be underinclusive because many heterosexuals also believe in homosexuality's moral acceptability, yet those individuals do not all appear to have been excluded by the Boy Scouts. It is conceivable that the active version of the nonassociation right should be construed to include the authority to exclude on the basis of noncognitive qualities, when opposition to those possessing that very quality constitutes a predetermined value underlying the assertion of the affirmative right of association. Requiring admission of individuals who possess the very quality opposed by the organization could seriously undermine the association's political effectiveness by demoralizing the membership, deterring new members, and chilling discussion among the members. The same considerations, however, do not dictate bringing noncognitive forms of discrimination within the framework of the passive version of the nonassociation right. To the extent cognitive considerations-for example, emotive demoralization-may inherently be implicated by any type of forced association, they are, in this context, properly characterized as incidental to the nonspeech governmental goal of ending discrimination. 109 Cognitive/Interpersonal Nonassociation

The most difficult category to characterize for First Amendment purposes is category 2, concerning cognitive/interpersonal nonassociation, because it intermingles both expressive and nonexpressive elements. In this situation, an individual chooses to shun some form of noncommunicative interaction with another on the basis of distaste for the views,

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beliefs, or ideology of the shunned individual (what I have referred to as "cognitive" grounds). A commercial boycott motivated by political or ideological considerations is illustrative. For example, in past years, one may have chosen not to buy Domino's Pizza because its owner at the time was active in the antiabortion movement, or a baseball fan several years ago may have refused to purchase a ticket to see the Atlanta Braves because of the antihomosexual views expressed by the team's pitcher, John Rocker. 110 Also included are refusals to participate in recreational activities with another individual because of distaste for that individual's sociopolitical views. In such a case, the interaction being shunned does not directly involve the communication of the offensive ideas (and therefore the nonassociation cannot be described as communicative), but the motivating force behind the shunning is nevertheless based on cognitive qualities of the person being shunned. 111 [nterpersonal shunning is itself not a purely expressive act because it necessarily imposes nonexpressive consequences on the shunned individual. Nevertheless, the presence of the cognitive element properly brings this second category of nonassociation within the First Amendment's protective scope. Forced association in this context implicates all of the concerns generally thought to trigger the First Amendment rights not to speak and not to listen. More importantly, in significant ways recognition of a right of cognitive/interpersonal nonassociation protects many of the same interests furthered by the right not to speak. The right not to speak can be logically extended to include a right not to be forced to provide a forum to one whose views the individual finds offensive. For example, the Jewish News presumably could not constitutionally be required to carry a column by the head of the American Nazi Party.U 2 The right not to provide such a forum can, in turn, logically be extended to include the right not to assist another whose views one finds offensive. Thus it has long been deemed a violation of the First Amendment to require an individual to directly contribute to causes with which she disagrees. 113 If these conclusions are reached, it logically follows that a private individual cannot, consistent with the First Amendment, be required to assist or associate with another whose views one deems offensive. Giving money to support one whose views the individual opposes is not significantly different from buying a ticket to watch a performance by one whose views the individual opposes. This is true, whether or not the performance will involve dissemination of the offender's views. Even if it does not, purchasing the ticket adds to the offender's ability to convey his message, if only indirectly, and prevents the sending of a message of ideological rejection of the offender's views. In this sense, requiring someone

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to purchase a ticket to see an offender's performance or even to offer the offender a job does not differ substantially from a requirement of a financial contribution, a clearly unconstitutional governmental action. Moreover, where the forced association would involve not merely the purchase of a ticket, but constant exposure to the offender, the type of cognitive demoralization feared in forced speech is likely to be triggered.114 Thus, a requirement that the Jewish News hire a member of the American Nazi Party-even to serve as janitor-or that a Jewish merchant could be prohibited from refusing to hire a Nazi as his assistant would undoubtedly be enormously harmful and disruptive to the very cognitive interests protected by the constitutional prohibitions against forced speech or the forced provision of a forum to one whose views a private individual deems offensive. It is true that the very things that this theory dictates that a private individual may not be constitutionally required to do, the government generally is prohibited by the First Amendment from doing. Government may not discriminate on grounds of the offensiveness of an individual's ideology or viewpoint. But there is an important reason why, in a liberal democratic society, a dichotomy is drawn between the state and the private sphere for purposes of constitutional commands. If individuals are to develop intellectually in the manner contemplated by liberal democratic theory, the individual must be given a type of cognitive freedom that a democratic society could not possibly tolerate from its government.115 One could suggest the possibility of a parade of imagined horribles flowing from recognition of a First Amendment right of cognitive/interpersonal nonassociation. For example, one could hypothesize a situation in which private businesses use universal ideological litmus tests in making hiring decisions. Such an extreme situation is highly unlikely to occur, however, for the simple reason that most ideological positions held in society do not rise to the level of offensiveness that would justify either such severe transaction costs or the likely loss of competent workers. In those cases where the offensiveness to the employer is so great that he is willing to bear those costs and risks, then the interests of the First Amendment should be deemed appropriately triggered, protecting the employer's right of nonassociation. Admittedly, the distinction between fully protected cognitive/interpersonal nonassociation and the unprotected noncognitive/interpersonal variety is not the difference between night and day. Both involve the imposition of nonexpressive consequences on the shunned individuals. In shaping the scope of constitutional rights, however, difficult lines have to be drawn. The cognitive basis for the shunning distinguishes the two sit-

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uations for First Amendment purposes. When government prohibits cognitively grounded nonassociation, it is effectively forcing the individual to support or associate with-either directly or indirectly-ideas which she deems offensive. This is so, whether it is by supporting the product of one whose views the individual finds offensive, by purchasing a ticket to observe a performance by such an individual, or by hiring or working with such an individual. It is the element of forced association with offensive ideas that distinguishes the two situations, for although this element is clearly present in violations of cognitively based nonassociation, it is missing from noncognitive shunning. Therefore, although the issue is admittedly not free from doubt, it is appropriate to draw the constitutional line at this point. The Hollywood Blacklist and the Right of Passive Nonassociation Once one articulates and rationalizes a passive First Amendment right of nonassociation, the constitutional complexity to which the Hollywood blacklist gives rise should become readily apparent. From one perspective-indeed, the perspective usually used today by liberal historiansthe blacklist was an unambiguous constitutional tragedy. 116 It would be hard to deny that as a result of the blacklist, creative sources were stifled, political activity was chilled, and lives were ruined for no reason other than political belief. It could ·be persuasively argued that such harsh penalization for the holding of a political belief is inconsistent with the central tenets of democratic theory and therefore more properly associated with an epistemologically arrogant totalitarian system than one premised on a belief in the consent of the governed. Such an argument is applicable, however, only when it is the government that is imposing the penalties because of political belief. When shunning is the result of private choice, the balance of considerations is altered dramatically. In such a situation, for reasons already discussed, the choices of private individuals not to associate may themselves derive from their First Amendment rights of nonassociation. In the case of the Hollywood blacklist, it does not appear that the narrowly based active version of the right of nonassociation is applicable, although in a number of other contexts during the McCarthy era, the active version would have been directly on point-for example, the choice of anticommunist unions to exclude communists, the decision of the liberal anticommunist Americans for Democratic Action to exclude communists, or the ACLU's exclusion of communists from its board of direc-

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tors.l 17 In each of these situations, requiring the organizations in question to admit communists would undoubtedly undermine attainment of their predetermined associational goal, namely opposition to communism. In contrast, the decision not to associate with communist directors, screenwriters, or actors appeared largely to have been a passive nonassociational choice because it was not inherently tied to a corresponding affi.rmative associational effort by the shunning party. Before one can understand where within the passive nonassociational matrix the blacklist falls, one must first determine exactly who was precipitating the shunning. Technically, the blacklist was an effort by the studios to exclude on a politically selective basis. Thus, it might be appropriate to view the choice of nonassociation to be that of the studios. However, in an important sense, the studios' blacklist is properly seen as a reflection of the preferences of private moviegoers. As one astute observer of the period has noted, "the industry ... responded as industry always responds to any manifest threat to its profits-with whatever mixture of caution, cowardice, prudence, hypocrisy, dissembling, and emergency planning it deemed necessary to its prosperity and survival." 118 The Screen Actors Guild informed its members that "if any actor by his own actions ... has so offended American public opinion that he has made himself unsaleable at the box office, the Guild cannot and would not want to force any employer to hire him. " 119 By imposing the blacklist, the studios were attempting to preserve their profits and in effect were simply anticipating the economic choices of the public. And given the widely held public perceptions of the time, it is hardly a stretch to suggest that a large portion of the moviegoing public would have refused to purchase tickets to movies which were known either to include communist actors or to have been written or directed by communists. What may not be entirely clear is how one should choose to categorize, within the passive nonassociational framework, the moviegoer's refusal to see movies written, directed, or performed by communists. Because film is obviously a form of communication, at least at first blush, it seems appropriate to characterize the shunning as category one, cognitive/communicative. The reason for the shunning is the political ideology of the shunned individual, and the nature of the interaction being shunned is purely communicative. The issue may not be quite that simple, however. There exists some question concerning the extent to which any of the shunned individuals actually sought to include cognitive themes within the films they made or, at the very least, the extent of their power to do so even if they had so desired. One historian has argued that very little of the creators' communist ideology entered the films, in part because each film went through so

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many hands.1 20 It is probably true that neither the Hollywood Ten nor any other Hollywood communists successfully authored movie scripts thalt were subversive in the sense that they undermined prevailing U.S. national objectives. 121 Rather, a study commissioned in the early 1950s and written by a former chief of the film reviewing and analysis section of the Office of War Information noted that "[t]he Ten were credited with an impressive number of top-quality war films which made a positive contribution to the government's war information program." 122 Regardless of whether the Hollywood Ten actually succeeded in promulgating detrimentally subversive propaganda, however, there is ample evidence they both attempted and succeeded in using their positions as screenwriters to promote messages that seemed to be patriotic, yet nevertheless comported with their communist political views. Before the end of World War II, Soviet and U.S. interests were largely intertwined. Indeed, it was easy for screenwriters to produce movies preaching U.S. sympathy for the Soviet Union without raising questions about their loyalty, for such sympathy benefited the Soviet Union without harming the United States. Although estimates on the number of screenwriters who were members of the Communist Party vary, a participant speculated that nearly 200 screenwriters were involved. 123 These party members, of course, had staked out political positions on all types of issues, including American wartime involvement, trade unionism, immigration, wealth redistribution, and racial segregation. 124 Thus, movie scripts written by Hollywood Ten members that called attention to corruption in local government or poor working conditions would not raise questions about communist influence because these same subjects were also being scrutinized by the mainstream press. 125 But it does not follow that the Hollywood Ten were writing free from communist influence. Membership in the Communist Party required a pledge of absolute commitment to the party's dictates. "[D]espite the American-centered impulses which led them to join the ... [Communist Party], Party members uncritically supported the U.S.S.R. in the public and tended to confuse 'the national interests of Russia with those of the United States."' 126 The Hollywood Ten viewed their movies as a means to influence the American public. For example, John Howard Lawson, the unofficial leader of the Hollywood Communist Party, wrote openly in a left-wing magazine that he did "not hesitate to say that it is my aim to present the Communist position and to do so in the most specific manner."127 Writers specifically were "recruited ... to be mustered in the ranks of an anti-fascist, pro-Russian army" according to leading authorities.l28 Lawson often exhorted fellow communists to "get five minutes of Party doctrine into every film, and to place such moments in expensive

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scenes so that they would not be cut by the producer." 129 According to Walter Goodman, "Lawson was also purported to have advised sympathetic extras to behave like slobs if they were playing rich characters and to look downtrodden if they were playing poor ones." 13 Fellow Hollywood Ten member Alvah Bessie considered such scriptwriting to be the attempt of an "honest writer ... to improve on the frequently shoddy material given to him. [H]e frequently succeeds-and this is sometimes called 'subversion."' 131 For Hollywood communists, then, the screen was another medium through which they were directed to disseminate their messages. Historians have discovered that during 1946, the party's national chairman, William Foster, held secret meetings with members of the Hollywood Ten, during which he told the faithful that even if they "can't expect to put any propaganda in the films ... we can try to keep anti-Soviet agitprop out." 132 Whether it was through the inclusion or exclusion of propaganda, the Hollywood Ten "did not believe that the professional goal of writing a 'good' or 'shootable' and financially successful script and the political goal of changing society were incompatible." 133 Thus, it should come as no surprise that communist screenwriters viewed their works as "a form of intellectuallend-lease," 134 in which they either flatteringly depicted the Soviet Union and collectivism, or they sought to keep anti-Soviet and anticommunist material off the screen. 135 In addition, wholly apart from their work in films, many of the Hollywood Ten members made party membership an important element of their daily lives. 136 They endorsed all the standard Communist Party messages: neutrality before 1941, Russian war relief and the opening of a second front to reduce Nazi pressure on the Soviet Union, and the need for the creation of the communist-sympathizing Progressive Party. 137 They petitioned for various causes, held fund-raisers at their homes, and recruited others to join them in acquiring control of the Screen Writers Guild. 138 Hollywood Ten member Alvah Bessie stated that writers were to "joyfully impose upon themselves the discipline of understanding and acting of working-class theory. " 139 Because of their positions of potential influence over the content of films, the Hollywood Ten stood poised to speak to millions of U.S. moviegoers. However, these potential moviegoers had no way of knowing about the political beliefs and associative backgrounds of the Hollywood Ten, for secrecy was an essential element of Communist Party membership. Historians have documented the numerous clandestine practices used by the Communist Party, including "its underground organizations, secret conclaves, forged passports, and false names." 140 Regardless of whether party members maintained secrecy out of fear of

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reprisal or in order to carry out their work more effectively, the existence of that secrecy cannot be disputed. Indeed, the strategy of secrecy appears to have venerable origins in communist thought. Passages from MarxistLeninist literature stressed the importance of anonymity: "It is necessary to agree to any and every sacrifice and even-if need be-resort to all sorts of stratagems, maneuvers, and illegal methods, to evasions and subterfuges ... in order to carry on Communist work." 141 Even if one were to proceed on the assumption that the films themselves did not reflect the underlying ideological perspectives of the blacklisted actors, directors, and screenwriters, it does not necessarily follow that the choice of moviegoers to boycott their movies falls outside the scope of the First Amendment right of nonassociation. One could conceivably continue to characterize the nonassociational choice as cognitive/communicative, because the reason for the shunning is cognitive and the nature of the interaction is still communicative, rather than interpersonal. The moviegoers, after all, would not be refusing to go to dinner with the blacklisted actors and directors. For most of them, that issue would never arise. They would be, rather, choosing not to expose themselves to communication on the part of the shunned individuals. This is so even though that communication does not itself convey the offensive ideas that give rise to the shunning in the first place. It might be suggested that exposure of the communist affiliations of screenwriters, directors, and actors failed to further the right of communicative nonassociation because whatever message their films contained remained the same, whether or not those responsible for them were communists. Whatever message the films sought to convey appeared on their face; if potential consumers found that message offensive, they should have simply avoided the film. The communist affiliation of those responsible for the film, the argument concludes, in no way alters that message. The situation is more complicated than this overly simplified analysis suggests, however. First, even if one were to accept this argument, at the very least the shunning would fit within the cognitive/interpersonal category that, as I have argued, should be deemed to be fully protected under the First Amendment right of nonassociation. Just as an individual has a nonassociational First Amendment right not to purchase products made by an individual holding staunch antiabortion views or not to purchase a ticket to see a baseball game because she finds the views of the home team's pitcher on homosexuality offensive, so too should an anticommunist individual during the r 9 5os be deemed to possess a First Amendment right not to give money to support those whose ideology he found so deeply offensive. More important, it is by no means clear that the purely communicative

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impact of a message on a listener or viewer will not be significantly affected by the source of that message. 142 Consider the following hypothetical situations. First, a tobacco company sponsors a scientific conference on smoking and health, and respected scientists at the conference deliver papers that question the proof of asserted links between smoking and certain illnesses. Assume that the scientists' conclusions are honestly held, expert opinions. Would it affect how one judges the force of their views to learn that the conference at which they spoke was sponsored by tobacco companies? For many, this would certainly be true. Many who heard the opinions knowing of their sponsorship would be at least somewhat more skeptical than if they were unaware of that fact. Similarly, can anyone doubt that the opinion of famed scientist Linus Pauling that vitamin C cures colds would be received differently from an identical assertion by the Florida orange growers? This is true even if one assumes that the statement of the orange growers is not fraudulent in any way. The same argument applies in the world of political discourse. For example, an expert report issued by economists attacking the president's proposed tax cut would naturally be viewed differently, depending on whether it was issued by a totally independent, nonpartisan think tank or a group of economists commissioned by the opposition party. In the same vein, when a professor authors a book arguing that the Holocaust never happened, it quite probably would affect a reader's perspective to learn that the author was a member of the American Nazi Party. The point should now be clear. Listeners will often discount the force of a message on the basis of the preexisting ulterior agendas and prejudices of the speaker, and what those agendas or prejudices are can quite easily affect both how persuasive the listener finds the message and how skeptical she is of that message. 143 Moreover, the level of offense the listener might take upon hearing the message can readily be altered by the nature of the messenger. For example, the level of offensiveness caused by the song "Springtime for Hitler" from Mel Brooks's comedy The Producers might well change dramatically were the song to be sung at a Nazi Party rally. Moreover, messages contained in films are often not straightforward and unambiguous, but rather may contain subtleties and nuances not readily ascertainable simc ply from reading reviews. Discovering that a film was made by communists could serve as an easily recognized signal to a potential moviegoer before viewing the film that he is likely to find certain views expressed in that film offensive. Even were one to characterize the moviegoer's boycott of films associated with communist writers, directors or actors under category 2, as

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cognitive/interpersonal nonassociation, the First Amendment right of pasE:ive nonassociation should be deemed to be triggered. For reasons already discussed, the cognitive disdain that private moviegoers had for the communist ideology of the blacklisted actors, directors, and screenwriters gave rise to a constitutionally protected interest in exercising the choice not to associate with the efforts of the blacklisted individuals, in much the same way that pro-choice individuals possess a constitutional right to boycott the products produced by a pro-life activist. Of course, like the pro-life activist, the communist performers and creative artists possessed a First Amendment right to choose their own ideologies. But in a democratic society, that right cannot insulate them from the negative reactions of other private citizens who find those views offensive. Four qualifications need to be added before an analysis of the Hollywood blacklist as an exercise of protected nonassociational rights can be completed. First, the existence of some degree of historical ambiguity about those responsible for the creation of the blacklist must be noted. 144 There can be little doubt that governmental agencies in general and HUAC in particular were very interested in having the private blacklist created and implemented because it obviously fit well with their carefully planned strategy of intimidating, punishing, and suppressing communists and their sympathizers. There also appears to be little doubt that in a number of ways, HUAC worked cooperatively with the studios in creating and implementing the blacklist. What remains ambiguous, however, is the extent to which the blacklist was actually the result of coercive efforts by HUAC or other governmental agencies. 145 To the extent it could be conclusively established that the blacklist was, in fact, solely or predominantly the result of governmental coercion, my conclusions about the blacklist would of course have to change. 146 Although private individuals possess a right of cognitively based nonassociation, the democratic social contract that is our Constitution prohibits government from making such politically selective choices.l 47 Whatever government's role was in creating the blacklist, however, there can be little question that, given prevailing political sentiment at the time, many private individuals found communist ideology deeply offensive. 148 It is difficult to believe, therefore, that private choices did not at least play an important part in driving the blacklist's creation and success. As previously noted, the American Legion placed great pressure on the studios by widely disseminating names of communists in the film industry.l 49 In radio and television, "private blacklisters played an even more destructive role than in the film industry." 150 "The professional blacklisters," according to one authority, "traded on the climate of the times, a climate stimulated by their friends in the press like Westbrook Pegler, Walter Winchell, Howard

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Rushmore, George Sokolsky and Victor Riesel, by the Legion, the Catholic War Veterans and the Veterans of Foreign Wars." 151 The second qualification to note is recognition of the possibility that names might have been included on the blacklist incorrectly, either because they had been confused with other individuals with names that sounded the same or because mistaken inferences had been drawn. 152 To the extent the blacklist is assumed to have been a private creation, then such mistakes would fall within the realm of the defamation tort, subject to whatever First Amendment limitations that have been imposed on enforcement of that tort. 153 The third qualification concerns the distinction-seemingly often forgotten during the period of the Hollywood blacklist-between recognition of a First Amendment right on the one hand, and normative agreement with the substance of the expression protected by that right on the other. One may recognize a First Amendment right for particular expression, even though one finds that expression unwise or politically offensive, and, correspondingly, the fact that one believes the First Amendment applies to expression in no way implies agreement with its views. Thus, that the First Amendment may apply to the blacklist does not necessarily imply the conclusion that the blacklist was moral or wise. Historians who have attacked the blacklist might respond that because no one ever attempted to have government invalidate or preempt the blacklist, the extent of constitutional protection that such shunning deserves is nothing more than a hypothetical issue. The only matter for discussion, then, concerns the wisdom and morality of the acts of private citizens who induced, prepared, or enforced the blacklist. But such a response gives only a partial picture of the state of the historical debate. So far as can be discerned, at no point in the historical debate have scholars of the McCarthy period ever recognized a fundamental distinction between governmental penalization and the privately inflicted form of punishment through shunning imposed by private individuals and entities. Yet if the argument concerning the constitutional right of passive nonassociation is correct, such an equation seriously distorts and obfuscates the balance of constitutional values in a democratic society. Surely, then, recognition of the public-private dichotomy adds important perspective to the modern view of what happened during the period. In any event, if one begins the analysis with recognition of the constitutional validity of the governmental-private distinction for purposes of ideologically based shunning, it is by no means clear that private anticommunists are as deserving of moral condemnation as the government during the McCarthy period. Today, when one judges the morality of those who sought to persecute and suppress American communists in the

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1940s and 19 sos, one may reasonably raise serious moral questions about the views and personal choices of those communists themselves. Although it is common for current historians to focus on the extent to which American communists were involved in such commendable efforts as the drive for racial equality, 154 much of their behavior in those efforts is of at least ambiguous motivation and effect. 155 More important, it should be recalled that American communists believed in-or at the very least tolerated-the authoritarianism and atrocities of Stalin's regime in the Soviet Union. As one commentator has persuasively argued, we should not forget "the political terror and the horrors of the Gulag that Hollywood money and influence helped to support during the worst years of Stalin's murderous reign." 156 Opposition to this type of ideological perspective and political activity cannot be unambiguously condemned on moral grounds. The only arguable moral basis for condemning private shunning on grounds of cognitive distaste for communist beliefs and activities, then, would be the process-based argument that it is wrong to shun private citizens for no reason other than their political beliefs or activities because to do so would chill dissent and impose a pall of moral and political orthodoxy on society in direct contravention of fundamental notions of constitutional democratic theory. Under democratic principles, the argument proceeds, the majority does not have the right to forcibly impose its views on the minority. This is especially true, it might be suggested, in the communicative arts, where ideologically based chilling appears directly contrary to the needs and values of democratic society. When applied as a rationale for the imposition of constitutional limits on governmental action, this process-based argument is compelling. Questions may arise concerning exactly what point political dissent is transformed into illegal espionage. For present purposes, however, we need not consider that issue because no one appears to have suggested that the Hollywood Ten or any other individual whose name appeared on the Hollywood blacklist were ever involved, directly or indirectly, in such illegal activity. Thus, were government to create and enforce an ideologically based blacklist, the First Amendment would assuredly be violated. But it is in response to this failure to distinguish between government and private citizens that I have fashioned the theory of constitutionally protected passive nonassociation. The process-based argument works well when used to attack governmentally imposed shunning; but it fails completely when used to attack privately imposed shunning because the private individual's ability to shun for political or ideological reasons is itself an essential element of the constitutional democratic process. The point can perhaps best be understood by hypothetically applying

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the process-based argument to private shunning of ideologies other than that of the American communists of the 1940s and 19 sos. Would those who condemn the private blacklists of that period, one may ask, today equally condemn, on the same grounds of democratic process, privately organized boycotts of the artistic works of an avowed racist or American Nazi? Although it might be presumptuous to speculate, at the very least the answer, for many, is uncertain. Indeed, the irony in the use of the democratic process argument to condemn the anticommunist blacklists is the existence of the "other" blacklist-the blacklist drawn up by communists in Hollywood, Broadway, book publishing, and journalismthat prohibited certain anticommunists, many of them former Communist Party members who had broken with the party, from working in their industries. Everyone who worked in those fields was well aware of this phenomenon. 157 As previously noted, the effort in the academy to deprive Elia Kazan of the lifetime achievement award was grounded not in a judgment about the quality of his artistic work but rather a judgment about the offensiveness of his political beliefs and activity. It was, in short, a paradigmatic example of politically grounded shunning. 158 If one condemns the Hollywood blacklist on the process-based grounds that one should "never [conspire] to deprive a man of work because of his private political convictions," 159 then any manifestation of private shunning on political grounds, at least in the workplace, must be equally condemned, regardless of how deeply offensive the individual finds the particular ideology. Pursuant to such thinking, presumably a Jewish concentration camp survivor could be condemned for refusing to hire an American Nazi to work beside him. Unless one is willing to accept so rigid a directive as morally, if not constitutionally, dictated, it is logically impossible to condemn private shunning of American communists. Paradoxically, the private right to shun is at its strongest when used to penalize offensive ideologies in the area that is itself the primary focus of free speech protection-the fields of arts and communication. For it is in these areas that the shunning is most directly tied to the long-established First Amendment right to choose not to expose oneself to ideas or information one finds ideologically offensive. The final qualification concerns the recognition of a conceivable distinction, for First Amendment purposes, between protection of the private, individual act of shunning and the preparation and dissemination of a list of names to be shunned. One may have a constitutional right to avoid the works of communists, it could be argued, but it does not follow that there also exists a constitutional right to advocate shunning to others or to disseminate to others names to be shunned. The response to this argument is simply, "Yes, it does." If an individual has a First Amend-

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ment right to shun on political and ideological grounds, then any attempt to persuade others to shun constitutes speech advocating the exercise of a right protected by the First Amendment. In light of the Supreme Court's expressed willingness to protect even speech advocating violent and unlawful acts under certain circumstances, 160 it would be truly bizarre to deny protection to expression urging that an individual exercise her personal, constitutionally protected option of shunning. The same conclusion should be reached about constitutional protection for the dissemination of specific names (subject, of course, to whatever constitutionally acceptable limits that may be imposed on the dissemination of false information by defamation law). Such expression must be protected, as much to facilitate the listener's exercise of her own right of nonassociation as to protect the rights of the speaker. The theory that the First Amendment is designed to protect the rights of the listener as much or more than those of the speaker has a venerable origin in the scholarly literature. Long ago, Alexander Meiklejohn fashioned such an argument, 161 and the Supreme Court has on occasion been receptive to such reasoning. 162 When the expression in question is designed to facilitate the listener's exercise of her own First Amendment rights, however, the argument for a listener-based argument becomes that much stronger. This reasoning has special relevance to the private shunning of American communists during the 1940s and 19 sos. If individuals were at the time assumed to possess a First Amendment right to shun American communists, that right could not have been meaningfully exercised without some means of learning who was, in fact, a communist. The concern takes on added significance when two additional factors are noted: (I) secrecy was a significant element of American communist doctrine and strategy, 163 and (2) a well-established tactic of the Communist Party of the United States was to take advantage of that secrecy by infiltrating and ultimately consuming noncommunist organizations. Although this reasoning applies to the context of passive nonassociation of the period, as in the case of the Hollywood blacklist, it is relevant in an even more intensified form to the active nonassociation right during the 1940s and 19 sos. Many private, political, or economic organizations of the time were formed for the very purpose of opposing American communism. Examples already noted include the Americans for Democratic Action and various anticommunist labor unions. Under the narrowly framed active version of the nonassociation right, the Supreme Court in Dale recognized the right of a private association to exclude those whose admission could undermine furtherance of the association's predetermined political or ideological goal. Yet if such a right is transplanted to the 1940s and 19 sos, its exercise would have been rendered hollow had

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individuals not possessed a corresponding First Amendment right to inform those organizations of the names of communists seeking membership. The probable response to this reasoning would focus on the need to preserve the privacy of personal political beliefs. Indeed, the concept of First Amendment privacy has its own venerable origins in Supreme Court doctrine. 164 Unless individuals are able to keep their political associations private, the argument goes, they will be chilled from entering into such associations, in derogation of fundamental First Amendment values. There is, to be sure, a great deal of truth to this argument. However, at least where the exposure of an individual's political associations has been made by other private citizens, rather than by government, 165 the centrality of such exposure to the meaningful exercise of nonassociational rights dictates full First Amendment protection.

HUAC AND THE RIGHT OF NONASSOCIATION

Although the constitutional right of a private individual or entity to expose previously private political associations of others must be recognized if the right of nonassociation is to be meaningfully exercised, 166 the issue becomes considerably more complex when the inquiry is shifted to the power of a governmental agency to expose private associations. Conceivably, one could reason that if there is a compelling interest in receiving information about others' political affiliations in order to facilitate exercise of a private individual's constitutional right of nonassociation, then it should be appropriate for a government agency to make public such information, for the same reason. Surely, at least when all other things are equal, it is appropriate-indeed, commendable-for government to facilitate the private exercise of the right of free expression, even if not commanded to do so by the First Amendment. 167 If one were to accept such reasoning, at least certain aspects of HUAC's investigation into the communist influence in the Hollywood community could be characterized as a facilitation of the First Amendment nonassociational rights of private individuals who would choose to shun films made by communists if they were made aware of that fact. Perversely, such an analysis would lead to the conclusion that the very practice traditionally condemned by free speech advocates, HUAC's exposure of unpopular political association, 168 should instead actually be viewed as a facilitation of the exercise of First Amendment rights. Even if one were to accept, as an abstract principle, the premise that government may expose individuals' private political association as a means of fos-

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tering the nonassociational rights of other individuals, however, it would by no means follow that HUAC's investigations should have been deemed constitutional, for several reasons. First, as explained in earlier portions of this book, serious questions may be raised concerning the legitimacy of the investigations as a matter of separation of powers. A legislative committee lacks the power to investigate for the sake of investigation; its inquiries must be somehow tied to a legislative end. 169 It is questionable whether HUAC's investigations had any realistic purpose other than exposure for the sake of exposure. 170 If such a conclusion were reached, then even if some governmental agency could have been empowered to expose, it would not have been HUAC. More important, HUAC's exposures would have been unconstitutional because of their viewpoint selectivity. 171 By way of analogy, the government may well have the power, consistent with the First Amendment, to restrict the ability of individuals to distribute literature in the middle of a roadway filled with automobiles. But if so, it would still be denied the power to prohibit only the distribution of literature critical of the government on that roadway. The viewpoint-based selectivity inherent in the restriction renders the distribution regulation unconstitutionally underinclusive. 172 Similarly, if the legitimizing factor for HUAC's exposure of otherwise private political affiliations was the goal of furthering others' nonassociational rights, then there would have been no rational basis for confining such exposure to communistsY3 Such viewpoint-based underinclusiveness, then, would have been constitutionally fatal to HUAC's efforts, even if one accepted the abstract principle of governmental power to expose. A strong argument can be made, however, that even as an abstract matter, the government should constitutionally be denied the power to expose private political affiliation for the purpose of furthering others' nonassociational rights. This is so even though there is little doubt that such exposure would in fact further such rights. When the government seeks to expose private political affiliations, the inherently antagonistic co111stitutional tension that traditionally exists between the government and the individual is necessarily triggered. 174 Although some have argued that the government should be permitted to interpose itself into the expressive process for the purpose of expanding the expressive opportunities for private individuals, 175 the dangers to First Amendment rights to which such authorization would give rise normally caution against allowing the government such power. 176 Allowing the government to have the power of exposure of private political affiliations would likely produce an enormous chilling impact of a magnitude not matched by private exposure. For any governmental exposure would always carry with it the unstated threat of further coercive actionY7

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CONCLUSION

From the perspective of pure human drama, the case of the Hollywood Ten is a tragic one. Individuals were imprisoned and for many years denied the opportunity to work openly and express themselves in their profession for no reason other than their personally held political beliefs. Under this view, those who organized or supported the boycott of the Hollywood Ten and other members of the motion-picture community are considered to be authoritarian suppressers of any political view they consider unacceptable, in contravention of the basic premises of democratic theory. This is surely the traditionally held view of liberal historians and constitutional scholars. It appears that conservative historians have failed to mount an adequate defense of either the HUAC investigation or the blacklist. When one adds the constitutional perspective of the First Amendment right of nonassociation, however, a very differentand morally more ambiguous-picture emerges. I have examined the case of the Hollywood Ten on two levels. Initially, I considered the implications of their treatment for abstract First Amendment theory. The blacklist is appropriately viewed as merely an organized means of exercising the private right of nonassociation because of what individuals deemed the moral or ideological offensiveness of the beliefs of those on the list, established by their membership in the Communist Party of the United States or its affiliates. This analysis of First Amendment theory leads to the ancillary conclusion that the First Amendment right of nonassociation should not be confined to the protection of active political associational rights, as the Supreme Court construed that right in Dale, but instead should include acts of what I have described as passive nonassociation, untied to any affirmative associational acts, when the basis for the shunning is cognitive or the nature of the interaction being shunned is communicative rather than interpersonal. This conclusion is reached because the theoretical origins of the nonassociation right should be found to include the right not to speak, as well as the right to affirmatively associate. The right not to speak does not turn on a corresponding affirmative exercise of the right to speak; rather, the right enables an individual to remain completely silent. Similarly, the right of nonassociation properly extends to an individual's choice not to associate because of distaste for the views, beliefs, or ideology of another. Application of this analysis to the Hollywood blacklist leads to the conclusion that the situation is appropriately viewed in a very different manner from the way it has traditionally been seen by historians. Historians rarely acknowledge any distinction between the treatment received

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by American communists from governmental bodies on the one hand and from private individuals and organizations on the other. Yet when the shunning of American communists was imposed privately during this period, the constitutionally protected interests of cognitively based nonassociation were triggered. Moreover, when the associational interaction being shunned was on a purely communicative level, as it was in the case of the motion-picture industry, the shunning partook of the exact same elements that protect the individual from forced ideological indoctrination. This fact only strengthens the force of the constitutional interests implicit in the act of shunning. One should logically be able to condemn such acts only if one believes that privately imposed shunning on ideological grounds is always an unacceptable violation of fundamental democratic principles. It is highly doubtful that many of those who have been so quick to condemn the shunning of American communists in the motion-picture industry would adhere to such a view, as the industry's subsequent shunning of many of the anticommunist informants demonstrates. The First Amendment protects an individual against governmental penalization for the expression of particular views or the holding of particular beliefs. When the First Amendment extends protection to the rights of belief and expression, however, it does not promise the individual a rose garden. It does not guarantee that others will agree with his views, or even that others will not find them deeply offensive. Nor can it assure an individual that others will not decline to deal with him for no reason other than the perceived offensiveness of those views. To deprive other private individuals or entities of the right to shun another on the basis of his political beliefs or expression in the name of the First Amendment would, in an Orwellian manner, itself act to deprive private individuals of their First Amendment rights. Once it is accepted that private individuals should have been recognized to have a First Amendment right to shun associations with the artistic works of American communists, it inescapably follows that a corresponding First Amendment right exists for private individuals both to attempt to convince others to do the same and to publicize the names of members of the Hollywood community who were members of the Communist Party. To be sure, such dissemination is controlled by the tort of defamation, so that false accusations may be actionable, although it should be recalled that the defamation tort has itself been substantially confined by the First Amendment when the plaintiff is a public figure, as many in the Hollywood community clearly were. But assuming the truth of the allegation, it would be totally illogical to simultaneously recognize a First Amendment right to shun but to deny to private individuals the

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right to communicate the names of individuals who fall within the shunned category. The right to shun would be rendered hollow if individuals were denied the opportunity to discover who possessed the set of beliefs that triggered the shunning in the first place. Arguably, the same reasoning could justify governmental exposure and publication of political and ideological affiliations, even though governmentally orchestrated, politically selective exposure could never be justified under the First Amendment. However, the Supreme Court has long recognized the important First Amendment implications of the protection of ideological privacy against governmental intrusion, and with good reason. There can be little doubt that forced exposure chills the holding of unpopular views. Such an interest is in direct conflict with the interest of private individuals in learning of others' political affiliations in order to facilitate the First Amendment right to shun on cognitive grounds. Although admittedly determining where the line is to be drawn is a difficult task, on balance the competing interests are most appropriately reconciled by denying government the power to expose for the sake of exposure. The First Amendment is largely an outgrowth of a fear of governmental power, and the concern is not sufficiently tempered when the government's involvement in the expressive marketplace is purportedly for the purpose of furthering others' free speech rights. I fully acknowledge that, in light of the difficult line-drawing problems that this analysis of the Hollywood Ten and the First Amendment right of nonassociation has created, I have perhaps created more problems than I have solved. If the analysis has brought about recognition of important and difficult questions of history and constitutional theory not previously seen, however, it will have served an important function.

CHAPTER SIX

Public Education, Free Speech, and the McCarthy Era

ANTICOMMUNISM AND PUBLIC EDUCATION

The Venona documents reveal an extensive network of espionage activity on the part of American communists. But for those who believed all the charges of espionage at the time, concern about communism extended far beyond a focus on the passing of governmental secrets. Just as invidious, many believed, was the danger that communists would infiltrate the public schools and attempt to shape the minds of the nation's youth. It was certainly true, after all, that an essential element of communist strategy in both Eastern Europe and China had been the effort to instill communist precepts in the minds of schoolchildren. 1 Although this strategy may have required significantly more time than attempted overthrow or espionage, if effective, it could ultimately prove far more succeE:sful. It is therefore not surprising that for three decades during the middle of the twentieth century many feared communist infiltration into the nation's educational systems. The concern was not so much that communists would seek directly to indoctrinate students by advocating and explaining communist doctrine, but that communists would seek to indoctrinate students indirectly by subtly modifying the teaching of traditional subjects. 2 Governments at both the federal and state levels sought to respond to what was considered to be a serious threat to the nation's youth. They used three different but overlapping methods of combating the danger of communism in the schools. Initially, they organized investigations into the extent of existing communist influence in the schools. Second, often those investigated were summarily dismissed from their academic positions. Finally, government often required that teachers sign loyalty oaths; those who refused were fired, and those who lied in signing were subject to criminal prosecution.

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On the federal level, investigations designed to detect communists operating in American schools were conducted by two congressional committees, the McCarran-Jensen Committee in the Senate and the Committee on On-American Activities in the House. Although both committees exercised only investigatory power, it was common for those called to testify to face sanctions from local school boards after their testimony. Before the congressional investigations, large-scale efforts to investigate possible subversion in education had been conducted at the state level. In 1940 the New York Legislature convened a special investigative body known as the Rapp-Coudert Committee. Although the committee was originally created as an inquiry into the financial plight of New York City's schools, a series of political pressures led it to focus instead on the danger of communists within the city's schools. 3 The committee, according to historian Ellen Schrecker, "pioneered the techniques that the later state and congressional investigating committees would employ. It developed evidence, elaborated arguments, and even trained personnel that its successor committees would appropriate, unchanged. " 4 The committee members, Schrecker writes, "pressured witnesses to name names, and they designed their public sessions to expose the presumably subversive behavior of the people who would not inform. They also counted on the employers of unfriendly witnesses to administer sanctions." 5 Although most of the committee's efforts were focused on uncovering communists operating within the city colleges, it also investigated a number of public schoolteachers. The first schoolteacher fired because of the Rapp-Coudert investigation was Ingram Bander, a history teacher at Bronx Vocational High School. He had been called before the city's Board of Education in May 1941 for a hearing to consider evidence garnered by the Rapp-Coudert investigation. Although he had denied that he was a communist, the board fired him because it found him to have been "untruthful and evasive. " 6 Bander was a probationary employee, and therefore no formal hearing was required to dismiss him. But although tenured teachers were accorded a supposedly full hearing by the Board of Education, those subjected to the process on occasion criticized the lack of procedural safeguards used by the board. 7

PUBLIC EDUCATION AND THE FIRST AMENDMENT IN THE SUPREME COURT

One of the key strategies in governments' efforts to keep communists out of public education during the McCarthy era was the use of loyalty oaths. Unless individuals agreed to swear their allegiance to the United

Public Education and Free Speech

States (and there were a variety of ways the oaths were phrased), they were denied the opportunity to gain or retain public employment. It was therefore not surprising that the primary constitutional attack on governments' efforts to keep communists out of public education concerned these oaths. At least in the early years, however, these challenges were largely rebuffed by the Supreme Court, on a variety of grounds. Most important was the Court's reliance on the so-called right-privilege distinction, under which an individual's First Amendment rights are not triggered by the deprivation of a privilege to which she has no independent constitutional right. 8 Thus, because individuals had no constitutionally protected right to be teachers, government's denial of this benefit could not trigger constitutional analysis. Also relied upon, however, was government's broad interest in choosing its employees, including those who teach in the public schools. In Adler v. Board of Education, 9 the Supreme Court's first major statement concerning government efforts to remove communists from the public schools, 10 the Court upheld New York State's Feinberg law, which required state employees to sign affidavits that they were not affiliated with subversive organizations. 11 Rather than contravene the First Amendment, the Court held, the law merely established certain requirements for individuals to work in the state school system. Even during the early years of the McCarthy era, however, the Supreme Court made clear that there were outer limits on government's power to use the loyalty oath as a weapon against communists. An example was the decision in Wieman v. Updegraff,U decided the same year as Adler. The case involved a challenge to an Oklahoma statute that required state employees to swear that they supported the United States Constitution, that they did not advocate nor were a member of any party that advocated the overthrow of the government, and that they would not become a member of any such party. The Court expressed concern about the oath's language, which had arguably implied that mere membership could be construed as a form of disloyalty. Although government has the right to protect its citizens from the threat of disloyalty, the Court reasoned, it cannot do so at the cost of individual freedoms. 13 Although loyalty oath issues predominated the First Amendment battles over the power of government to exclude communist teachers, other, more direct restrictions on public employees were also challenged. In the Supreme Court's subsequent decision in Slochower v. Board of Higher Education, 14 a college teacher with twenty-seven years' experience was called to testify before a congressional committee. He refused to answer questions concerning his alleged prior membership in the Communist Party, and shortly thereafter he was suspended and later relieved of his

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duties as associate professor at a city university. Noting that Slochower did not have a "constitutional right to be an associate professor," the Court concluded that the state has broad powers in the selection and discharge of its employees. However, the Court chided the Board of Education for focusing upon Slochower's assertion of his privilege against selfincrimination at the committee hearing. The assertion of the privilege, the Court reasoned, could not be directly converted into a presumption of communist affiliation. Thus, in order to ensure due process, the state would be required to conduct its own investigation into Slochower's activities. The constitutional validity of the loyalty oath basically died with the McCarthy era itself. At no point did the Court ever categorically hold that loyalty oaths as a prerequisite for public employment violated the First Amendment. However, in a series of cases in the early and mid196os, the Court severely restricted the use of loyalty oaths when it found those oaths to be unduly vague or overbroad. 15 In 1967, the Court in Keyishian v. Board of Regents 16 struck another blow against loyalty oaths. As in Adler, New York's Feinberg law faced scrutiny in the Supreme Court. Keyishian was an English instructor at the privately operated University of Buffalo when in 1962 it merged with the state university system. Under controlling state law, faculty members' continued employment was conditioned on compliance with all of the requirements imposed in state academics. Included among those requirements was the signing of a certificate that the signatory was not a communist, and if at some point he or she had been a communist, this fact had been communicated to the state university president. Keyishian's refusal to sign the certificate led to his dismissal. In ruling upon his First Amendment challenge, the Court considered the constitutionality of the state law that "disqualifies from ... the educational system any person who advocates the overthrow of the government." 17 The Court initially pointed to a letter sent by the president of the state university to prospective appointees explaining that state laws and regulations "are very specifically directed toward the elimination and nonappointment of 'Communists' from or to our teaching ranks." 18 While purporting not to overrule its earlier decision in Adler, which had upheld the very same law, the Court nevertheless found the law to be unconstitutionally overbroad. It so held because nothing more than inactive membership would fail to provide a sufficient basis on which to justify the invasion of First Amendment rights, and the absence of a showing of intent to further the unlawful purposes of supposedly "subversive" organizations would dictate a finding of inactive membership. Because the Court in the 196os confined its constitutional attacks on

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loyalty oaths to overbreadth, vagueness, and due process grounds, it left open the theoretical possibility that governments might be able to fashion an oath that satisfied constitutional standards. Thus, in the 1970s the Court had no trouble upholding oaths that required an affirmation of support for the Constitution and the promise that a teacher would "faithfully perform the duties" of his position. 19 However, in 1972 the Court held that public employment could not be conditioned on taking oaths that impinged on the First ,Amendment right of political belief, thereby seriously limiting government's power to require oaths denying communist affiliations. 20 For the most part, use of loyalty oaths as a means of excluding communists from employment as public schoolteachers has gone the way of most of the McCarthy-era regulations. Just as liberal scholars have long decried the Supreme Court's castration of the "clear and present danger" test as a means of restricting governmental efforts to control communist activities, 21 so too have they universally condemned the use of loyalty oaths as little more than a form of governmentally imposed thought controL In earlier chapters, I have already made clear my condemnation of the unlawful advocacy decisions of the Court during the McCarthy era, a position completely unchanged by the revelations of the Venona documents.22 However, as I have sought to make clear throughout these pages, the constitutional implications of the McCarthy era are far more complex than either a reflexive liberal or conservative position might dictate. Although certain actions of government during the McCarthy era were unambiguously reprehensible on moral, political, and constitutional grounds, when viewed through the lens of First Amendment theory, other governmental responses to American communism appear to be far more constitutionally legitimate, regardless of what one thinks of them on political or ideological grounds. We have already seen one clear example of this dynamic: the blacklists against those in the performance industry who had present or past communist ties. At first glance, it appears that these blacklists represented a tragic penalization of individuals for nothing more than their personal political ideology. However, closer examination revealed a strong counter-First Amendment interest in the ability of those who abhorred communism to shun communists, both personally and professionally. 23 A similar constitutional argument might be fashioned to uphold the constitutionality of certain governmental efforts during the McCarthy era to exclude those with communist affiliations from positions as teachers in the public schools, regardless of how one chooses to view those efforts on moral or political grounds. As in all other areas of my inquiry, the First Amendment issues con-

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cerning ideological control in the public schools that arise from the events of the McCarthy era are best understood by the conduct of a much broader inquiry into the recesses of First Amendment theory. The First Amendment issue here turns on how one wishes to view government's role in the use of the public educational system as a means of inculcating values in the youth of the community. If one believes that government has an appropriate role to play in crafting public education as a means of socializing student attitudes, and the attitudes sought to be developed during the McCarthy era included a strong belief in the moral and economic value of capitalism, then it would have made perfect sense for those in charge to exclude teachers who did not share such values, including communists. The same reasoning today leads to the conclusion that Nazis and Klan members be excluded from a race relations or social studies classroom. Even if one accepts such reasoning, however, it surely does not follow that during the McCarthy era governments could constitutionally exclude communists from all academic positions in public schools, for the simple reason that in many classes no such danger inherently arises from the hiring of communist teachers. Thus, once again, the constitutional issue turns out to be considerably more complicated than most scholars imagine it to be. By examining this aspect of the McCarthy era from the perspective of First Amendment theory, I conclude that, as politically controversial as the behavior may have been, states and local governments acted within the scope of their constitutional authority when they sought to exclude teachers with communist affiliations from courses where there existed a reasonable danger that those affiliations would interfere with the community's ability to shape and convey the curriculum in the manner it deemed appropriate. However, I also conclude that no such power existed for courses where a teacher's politics would not likely have such an effect. By examining First Amendment theory on the basis of the insights drawn from study of the McCarthy era, I recognize that the very nature of public education gives rise to a serious conundrum of free expression. In this chapter, I seek to explicate that problem, to sort out all of the conceivable constitutional responses to it, and to recommend my own First Amendment solution. Before one can sort out exactly how the theory of free expression and McCarthy-era governments' ability to exclude communist teachers are intertwined, it is first necessary to understand the theoretical complexities inherent in the intersection of free speech and educational theory. It is to this question that the remainder of this chapter now turns. In the course of my analysis of this theoretical intersection, two points, one methodological and one conceptual, will emerge. On the methodological level,

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we can see once again how the study of the McCarthy era through the lens of free speech theory enriches our understanding of both the history of the period and the conceptual contours of the theory of free expression. On the level of pure free speech theory, two insights emerge. First is the realization of the virtually intractable dilemmas that pervade any effort to reconcile the competing concerns of democratic and educational theories. Second is the recognition of a doctrinal model that, although by no means perfect, comes closest to a proper reconciliation-what is appropriately described as the anti-indoctrination model. Pursuant to the anti-indoctrination model, government may not constitutionally use the public schools as a means of inculcating values, except as an inescapable incident to performance of the necessary function of shaping the content of the curriculum.

FREE SPEECH AND THE DEMOCRATIC-EDUCATIONAL PARADOX

The American constitutional democracy is premised, at some fundamental level, on the notion that societal decisions are made with the consent of 1:he governed. 24 Because in a democratic system the people are the real governors, 25 it logically follows that government may not dictate what individuals may say or believe. Although government may seek to influence the outcome of sociopolitical debates by contributing to them, the First Amendment right of free expression prevents government from selectively censoring private communication simply because it disagrees with the views being expressed. 26 Few would dispute such essential premises of the American governmental structure. Yet if one were to consider the operation of the nation's educational system, one would see a far different picture. Most weekday mornings, millions of parents willingly send their children to the government-operated facility known as the public school. Once there, children are expected to follow a series of rules designed to facilitate the process by which governmental employees-teachers-lecture them on subjects deemed important by government officials. To a certain age, children are required by law to receive this governmentally prescribed education, during which time they are taught what government officials have deemed to be the truth about those subjects. 27 Moreover, they are instilled-both within and beyond the formal contours of the curriculum-with certain substantive values deemed by government to be morally fundamental and certain facts deemed to be indisputable: that the United States is the greatest nation on earth, for example; that all

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humans are created equal; that George Washington and Abraham Lincoln were true American heroes; and a variety of other empirical or normative precepts that have been so ingrained in Americans that one hardly notices them. Further, when tested to see whether they are absorbing what is being taught, students who do not provide the "right" answers will have their grades suffer accordingly. In the public school context, then, agents of the government play a far more dominating and censoring role in the thought-development process than government is permitted to play within the broader confines of a democratic society. The greatest irony in this dramatic dichotomy between a citizen's role in the educational context and her role in the adult world is that a vibrant educational process has long been deemed essential to the effective operation of a democratic system. 28 Democracy trusts citizens to make wise governing choices; unless those citizens are able to make informed decisions, democracy could lead to a society's demise. The free-thinking individuals presupposed by a commitment to democracy cannot be expected to choose soundly without at least a basic education that provides some level of information and training in rational thought processes. Thus, it is not surprising that American society has long been committed to the concept of compulsory education and the provision of public schools for educational purposes. 29 Yet the educational process that serves as a vital catalyst for the vibrant functioning of American democracy is itself inherently and intentionally undemocratic. Officials of the state determine what subjects are taught, what books are read, and, most importantly, what is communicated about each subject to a captive audience of largely unformed and impressionable minds. Agents of the state-whether they be government bureaucrats, school principals, or the individual teachers-determine, for example, whether students will be taught that Columbus was a hero or that he was a genocidal murderer, how Huckleberry Finn's moral dilemma about the conflict between property rights and human dignity should have been resolved, and whether the United States treated Native Americans fairly in the course of the nation's western expansion. State officials will determine whether the New Deal will be presented as a legitimate political and economic advance, whether women have been mistreated throughout American history, whether the House Un-American Activities Committee functioned as an effective protector of American society against the internal threat of communism, and whether students will be required to read the works of Toni Morrison instead of those of Ernest Hemingway. The list of informational and normative choices that a school system will make during a student's approximately thirteen years within its bounds is virtually endless. Moreover, teachers often do not

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present the informational and normative content as being merely one of a number of conceivable alternative views of an issue or question. Rather, the authoritarian figure in the classroom will usually determine which viewpoint is "correct," and students may be expected to provide those correct answers on tests, at the risk of failing if they do not. It is naive to believe that the content of students' education will have little or no effect on the perspectives those students will bring to their choices as citizens within the democratic framework. 30 When one synthesizes these two facts, one is left with the inevitable conclusion that the attitudes and preconceptions of supposedly free-thinking and autonomous citizens in American democratic society are shaped predominantly by the government. This picture seems disturbingly reminiscent of classic totalitarian societies, which have traditionally viewed the classroom as the primary means for imposing the type of thought control so es:;ential to their continued success. 31 It most assuredly appears inconsistent with liberal democratic theory, the existence of which depends on the capability of autonomous and free-thinking individuals to make free choices. 32 Yet if, as liberal democratic theory assumes, democracy requires widespread education of the electorate in order to function properly,33 one is left with a seemingly intractable paradox: the very process that is essential to the success of democracy threatens the fundamental preconditions of democracy. Although scholars have occasionally recognized certain aspects of this dilemma, 34 none has proposed a satisfactory resolution. 35 More important, the courts have not acknowledged, much less resolved, the existence of this fundamental theoretical paradox. Recognition of this democratic-educational paradox has important implications for the theory and application of the First Amendment right of free expression. The manner in which the inherent structure of the public educational process threatens First Amendment rights, however, is somewhat more complex than it might first appear. I am not suggesting that the state's curricular choices directly infringe upon the free speech rights of either teachers or students. Although it is true that students do not leave their First Amendment rights at the schoolhouse door, 36 within the classroom students do not have a constitutional right to say anything they want whenever they wantY Nor do teachers have a First Amendment right to teach whatever they choose. Although a teacher's First Amendment right allows him to say what he wishes outside the classroom,38 the inmates do not run the asylum. If a school board or principal decides that a particular subject is to be taught in a particular way, individual teachers do not have a constitutional right in the classroom to preempt the decisions of their superiors. 39 The First Amendment problem, rather, is more subtle and indirect, but no less troubling, than the tradi-

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tionally recognized direct interferences with a private citizen's attempts to communicate to willing listeners. That problem is, simply, that by means of the public educational process, the state is able to engage in a dangerous form of political, social, or moral thought control that potentially interferes with a citizen's subsequent exercise of individual autonomy. Such thought cbntrol threatens the democratic values embodied in the First Amendment right of free expression in two fundamental ways. First, the notion of thought control is inconsistent with the concepts of free thought and mental autonomy that render the exercise of the free expression right meaningful. To make the point by means of an admittedly hyperbolic illustration, the rights of freedom of thought and freedom of expression are useless to a society of mental automatons. If the American public educational system produces citizens whose minds have been consciously molded in a particular manner, the exercise of free expression by those citizens cannot really be free in any meaningful sense of the term. Second, by selectively instilling in students a predetermined set of normative values and empirical assumptions, the state effectively favors certain viewpoints over others. Moreover, given the first concern, this viewpoint selectivity may have a significant impact well beyond the four walls of the schoolhouse, shaping students' attitudes and predispositions for much of their adult lives. In this manner, similar to totalitarian societies, the American government may substantially distort the flow of both political argumentation and political decision making throughout society. Not all political theorists or constitutional scholars share the concern about the threat to democracy posed by the inherently authoritarian nature of the educational process. Communitarian scholars would no doubt argue that even a democratic society must have some means by which to instill in its citizens shared values and traditions, 40 lest the society degenerate into a Hobbesian state of nature, plagued by a war of all against all. Because of its universal nature and the formless state in which students enter the process, the education system provides an ideal mechanism for the inculcation of these shared values. Moreover, communitarians would argue, because of its inherent limitations the educational system does not threaten the individual's ability to speak or think freely once she becomes an adult member of society. 41 This rationalization of the democratic-educational paradox is a legitimate attempt to reconcile its seemingly conflicting yet interdependent elements. Indeed, even those theorists who generally resist the sweeping claims of communitarians may find acceptable a limited notion of shared values, which government may properly convey to its citizens if it concerns only the value of the democratic process itsel£. 42 Nevertheless, the communitarian rationale fails to satisfactorily address the First Amendment concerns previously noted.

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If one rejects the communitarian rationale, however, two significant problems arise. First, as a theoretical matter, it is not clear how to restrict the educational process. Second, even if all agreed upon the underlying theory driving constitutional analysis, as a purely practical matter it is uncertain how the judiciary could effectively police the day-to-day educational process to enforce the agreed upon theoretical structure, at least without turning into a type of super-school board. After all, schools have to teach something. It would be nearly impossible for a reviewing court to distill the unacceptable from the essential without effectively dictating the content of the curriculum, which surely is an untenable result. However, answers do exist to both questions, although they perhaps are not ideal. It would be both practically and theoretically impossible to completely prevent the governmental values inculcation that occurs in the educational process; in certain instances, values inculcation is an inherent byproduct of the educational process, and it would be absurd to hypothesize a vibrant democratic society absent such a processY However, it is possible, through use of what can be called the anti-indoctrination model of First Amendment interpretation, for the judiciary to reasonably police the educational process in order to restrict values inculcation to that essential minimum degree required for the educational process to function. In policing government's ability to inculcate values through the educational process, the anti-indoctrination model gives significant, albeit not dispositive, weight to the distinction between what is taught in the curriculum and what is conveyed to students in a context unattached to the formal process of course instruction. 44 It will be difficult to police those values conveyed to students during the process of educating them about specific class subjects. In most cases, one cannot reasonably expect the courts to play a significant role in checking governmental attempts to shape student value systems incidental to the teaching of subjects that are not themselves directly designed to inculcate values. On the other hand, pursuant to the anti-indoctrination model, courts will generally deem unconstitutional a public school system's efforts to shape students' sociopolitical values outside this education-incidental context. Thus, courts will determine that special assemblies or programs held for the purpose of value inculcation-whether about racial or gender equality, ethnic tolerance, patriotism, or any other normative issue of concern primarily beyond the four walls of the schoolhouse-are presumptively unconstitutional because they are improper governmental attempts to inculcate sociopolitical values in a uniquely impressionable audience. This would be even more true of any pledges or oaths, such as the Pledge of Allegiance, that students must memorize and repeat aloud dur-

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ing the school day. 45 Even within the contours of the curriculum, the antiindoctrination model demands that teachers convey only those values that are both substantially related and incidental to the educational process. In other words, teachers must teach something other than the particular value itself. To the extent that the school could discuss issues of ideological, moral, or social values in a freestanding context within the classroom, it would also have to explore competing values. 46 At first blush, this standard might seem extremely difficult to apply. However, in many ways the judicial inquiry would differ little from the inquiry into the content of the educational process in First Amendment Establishment Clause cases. The Supreme Court has construed the Establishment Clause to allow public schools to teach about religion without teaching religion itsel£. 47 Similarly, the inquiry under the anti-indoctrination model would focus on whether the context indicates that schools are describing or advocating. As subsequent discussion will show, adoption of this model could reduce the harms to First Amendment interests that flow from orchestrated governmental values inculcation in the public schools without significantly disrupting the day-to-day operation of the educational process. Many, no doubt, would be perturbed by the notion that public schools are constitutionally disabled from conveying values that the community deems sacrosanct-for example, that the use of alcohol and tobacco by teenagers is wrong, that all races are equal, and that people should not be discriminated against because of gender or sexual preference. It is important to keep in mind, however, that First Amendment choices are necessarily made behind a Rawlsian "veil of ignorance": when choosing a mode of First Amendment construction, one cannot know which particular values will be promoted as a result. 48 If one concludes that the First Amendment permits schools to consciously seek to inculcate predetermined values in their students, that conclusion may not be conditioned on the assumption that only one particular set of values will be transmitted. Therefore it would be futile to adopt the abdication approach-an approach that requires the judiciary to abstain from hearing First Amendment challenges to curricular decisions-in a strategic attempt to advance a particular set of values. Instead, the sociopolitical views that the abdication approach strategically advances would be the particular set of sociopolitical views that happen to dominate in the community at that particular point in time. Thus, if one were to suggest that schools must be allowed to teach that gender or sexual-preference discrimination is bad, those schools would also have to be allowed to teach that gender or sexual-preference discrimination is good. How acceptance of the anti-indoctrination model would impact the

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treatment of teachers with communist affiliations during the McCarthy era is a complex question that requires careful analysis. However, before that question can be thoroughly explored, one must understand the broader premises and constitutional implications of the model. In turn, before one may understand the premises and implications of the anti-indoctrination model, one must fully comprehend where that model is designed to fit within the theoretical and doctrinal topography concerning the First Amendment's application to the educational process. The initial question concerns the nature of the First Amendment's application to a school system's curricular choices. As already noted, the First Amendment implications for school curricular choices are not standard freespeech fare because curricular choices do not interfere directly with anyone's legitimate right to speak. Hence the next section of this chapter focuses on the serious, albeit perhaps not immediately recognizable, First Amendment problems that flow from these choices. Understanding how the shaping of school curricula for purposes of values inculcation negatively affects First Amendment interests, however, answers only the most basic questions. Although that analysis demonstrates that a potential First Amendment problem exists, it does not explain whether that potential problem actually rises to the level of a constitutional violation, and if so, what the judicial remedy should be. To answer these questions, a much more foundational type of theoretical analysis is required, which scholars have yet to use effectively. Although a certain amount of both case law and scholarship exist concerning the constitutional-educational intersection, 49 those analyses generally have been unduly truncated: neither courts nor First Amendment scholars have provided a detailed exploration of the broad theoretical intersection between educational theory and the democratic process. Moreover, modern educational theorists have given only limited attention to the issues raised by the democratic-educational intersection. 5° Absent such a first-level theoretical analysis, it is effectively impossible to provide a coherent conception of either the paradoxical love-hate nature of the relationship between educational and democratic theory, or the role that the First Amendment should play in curbing governmental authority to shape the educational structure. Therefore, the chapter will next seek to provide that preliminary, but nevertheless essential, first-level analysis. Before a detailed First Amendment analysis, the section examines how theories of education interact with alternative visions of American political theory. After that preliminary inquiry, the chapter explores alternative First Amendment approaches to the democratic-educational paradox. It concludes that no approach other than the anti-indoctrination model adequately balances the relevant First Amendment interests with competing

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interests in structuring the modern educational process. Finally, the chapter considers several specific hypothetical First Amendment problems growing out of the democratic-educational intersection, including schools' authority to refuse to hire teachers because of their ideological affiliations and to teach values as a distinct subject within the framework of the curriculum. It is at this point that one will be able to understand the full implications of the anti-indoctrination model for the treatment of communist teachers in the McCarthy era.

THE FIRST AMENDMENT, EDUCATION, AND INDOCTRINATION

The First Amendment Baseline

Earlier in this book, I explored the basic contours of free speech theory. 5 1 However, in order to understand the implications of educational theory for the scope of First Amendment thought, it is necessary here to refocus the inquiry on the baseline precepts of free speech theory. Scholars and jurists have never achieved anything approaching unanimity on either the values served by the First Amendment guarantee of free expression or the doctrinal principles necessary to implement those values. 52 Nevertheless, it is possible to discern certain baseline precepts that are essential to ensure that the First Amendment right is not rendered incoherent. Recognition of those fundamental dictates will provide a solid frame of reference by which one should measure the constitutional implications of governmental control of the public education system. Alexander Meiklejohn once wrote that the precept of free expression "springs from the necessities of the program of self-government.... It is a deduction from the basic American agreement that public issues shall be decided by universal suffrage." 53 The United States' commitment to the concept of accountable and representative government dictates that ultimately, if only indirectly, the people are responsible for making basic choices of social and moral policy. A democratic society is not constrained by externally derived or imposed normative principles; rather, as a definitional matter, a democracy may select its own substantive value system, 54 either through a majoritarian representative process or, if the society has chosen to enshrine certain values in a supermajoritarian constitution, through a supermajoritarian amendment process. 55 This commitment to political freedom, in turn, necessarily presumes the existence of an electorate made up of free-willed individuals who are capable of

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making their own choices. Because the individual members of a free society bear this ultimate power and responsibility, it follows that they must be permitted to communicate information and ideas to each other in a free and open manner in order to facilitate democratic decision making. Moreover, because externally derived values cannot constrain a democratic society, the electorate has unlimited ability to adopt any value structure it wishes through its chosen representatives or by constitutional amendment. Although this conclusion may appear extreme, any other conclusion would render a democracy effectively indistinguishable from any totalitarian society that requires elections to reach a predetermined result. Because a democratic society theoretically may, through its governing agents, choose any course of action, and because the freedom of expression is designed to facilitate the democratic process, it follows that in regulating private speech, government must be constrained by the principle of epistemological humility. 56 Under the First Amendment, the Supreme Court has said, there is "no such thing as a false idea." 57 Were those in power able to selectively restrict private expression on the basis of the government's normative view of the positions expressed, the entire governing process would be seriously distorted and society's initial commitment to democracy threatened. 5 8 By distorting the free flow of information and opinion to favor one viewpoint or to burden another, government would interfere with the exercise of the electorate's ultimate self-governing function. 59 Thus, the Supreme Court has adopted as its doctrinal baseline the principle that the government may not constitutionally regulate private expression because it disagrees with the viewpoints expressed. 60 Although the prohibition on viewpoint-based regulation provides the foundation of modern First Amendment theory and doctrine, the Supreme Court has recognized certain ancillary precepts that do not concern direct restrictions on private expression but which nevertheless are essential to ensure a viable First Amendment right. For example, the Court has held that government may not compel private individuals or entities to speak, even though such compulsion does not necessarily prohibit a private party from saying anything she wishes. 61 The Court reached this conclusion because compelled expression breaches the barrier between government and private individuals and threatens to skew the political marketplace to further governmental goals and interests. 62 Moreover, the individual's freedom of thought must be constitutionally protected, even though as a technical matter freedom of thought is not the same as freedom of expression. Freedom of thought must be protected, because absent free thought the concept of free expression is ren-

Public Education and Free Speech dered incoherent: the right to speak freely is meaningless if the speaker has not been permitted to freely formulate her thoughts before speaking.63 Indeed, a foundational strategy of any sophisticated totalitarian society is to control the minds of its citizens, thereby destroying individual mental autonomy. 64 Not surprisingly, then, such thought control is anathema to any democratic society. It is therefore difficult to imagine that the Supreme Court would uphold against a First Amendment challenge governmentally compelled "reeducation" classes designed to indoctrinate citizens in a particular political philosophy. Although as a technical matter these courses would not directly interfere with the citizens' right to express themselves, much like compelled speech these classes would breach the wall between government and the mental autonomy of the individual citizen. Thus, governmentally forced listening or reading must be presumed to violate the First Amendment in much the same way that governmentally forced speech does. Applying the First Amendment Baseline to the Public School Setting Although few commentators or jurists would significantly disagree with this analysis of the First Amendment's theoretical and doctrinal baselines, if one were to apply these baselines to the context of public schools, one would immediately recognize significant discord between these recognized rights and the government's established practice. Like citizen indoctrination courses, public schools compel students to attend governmentally orchestrated educational operations, where they will have their minds shaped and informed in the manner that some agent of government has deemed appropriate. 65 Of course, it would be nonsensical to suggest that the First Amendment implications of compulsory education for children are the same as the implications of compulsory education for adults. No one could dispute that compulsory education for children is justified by a compelling interest inapplicable to the use of this process for adults-the vital need to create an informed and educated citizenry in a democratic society, in which the citizens act as the ultimate governors. 66 Nonetheless, a number of aspects of the American educational system threaten core premises of democracy. The educational process's potentially ominous implications for a democratic society can be seen by examining how totalitarian societies have used their educational systems as a strategic means for inducing citizen compliance. For example, communist societies viewed the educational system as the primary means for

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bringing about such compliance. Although adult citizens were already formed individuals, children were thought to be a "blank page" upon which the state could write, 67 because they represented the most "malleable minds" among the citizenry. 68 Shortly after gaining control of China in 1949, the communist regime "banned all texts then in use. " 69 In East Germany, during the cold war, the Ministry of Education oversaw the curriculum and teachers' lesson plans and ensured that texts were uniform throughout the country. 70 In Romania, teachers expressed discomfort about being compelled to lie to their students when teaching history after the communist revolution in that country. 71 In the Soviet Union, when children began kindergarten, rather than teach that school was an extension of home life, teachers sought to portray the children's home life as an extension of kinderganten.72 Totalitarian nations developed similar educational practices designed to indoctrinate students. These practices included centralizing control of education/3 emphasizing political tasks over educational ones/4 singing revolutionary songs/5 memorizing Party slogans, 76 putting children to work at an early age so they became accustomed to having labor as part of their daily lives, 77 holding ceremonies to honor the revolutionary cause,78 imparting communist ideology in all academic subjects/9 and subordinating the individual to the welfare of the greater group. 80 Thus, in the hands of a totalitarian state, compulsory education has traditionally provided an extremely effective means for destroying any possibility of individual thought, so that the state may manipulate the minds of its citizens to its own ends. To be sure, the mere fact that both democracies and totalitarian states use a process of compulsory education does not automatically imply that by making use of this process a democracy necessarily risks sinking into totalitarianism. By way of analogy, the fact that both democracies and totalitarian states maintain police forces does not automatically suggest that by use of a police force a democracy is transformed into a dictatorship. On the other hand, this analogy should give one pause about the democratic-totalitarian overlap in the use of compulsory education systems. Because the presence of a governmentally operated police force is a hallmark of totalitarian regimes, the American constitutional tradition has sought to impose strict limitations on the police's methods of law enfor,cement.81 Yet few appear to have recognized a similar need to impose constitutional restraints on the state's use of compulsory education. It is true, of course, that without violating the First Amendment, government may make its own contributions to the expressive marketplace. Government may urge its citizens not to drink and drive, to support N1\FTA, or to hate the nation's enemies. Government speech is most cer-

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tainly not an inherent violation of the First Amendment. 82 But the school setting gives rise to a unique and serious First Amendment concern. As the Supreme Court has wisely recognized, school children are especially impressionable and therefore considerably more vulnerable to authoritarian advocacy than normal adult citizens. 83 The students, whose minds are largely undeveloped at the time they attend school, are exposed for the bulk of the day only to the viewpoints of authoritarian governmental agents in school classrooms and hallways. Neither fact is true of the ordinary citizen exposed to a variety of viewpoints in a political debate. Thus, the schools present a uniquely dangerous form of government speech of the type traditionally utilized by totalitarian societies as a means for destroying the mental autonomy of citizens. The differences between the totalitarian and democratic operation of compulsory education may not be as dramatic as most have generally assumed. The accuracy of this observation is demonstrated by an examination of how the public educational system has traditionally been used in the United States to promote and induce patriotism among the citizenry. Schools in the United States come closest to encouraging student identification with the state when they seek to instill a patriotic spirit in their students. However, patriotism was not always a focus of America's schools. After the American Revolution, most citizens were concerned primarily with local issues. 84 Unlike most countries, in the United States there was no coordinated national effort to create a common identity. 85 After the Civil War, however, when private groups first spearheaded efforts to establish a national identity, one of the first places they targeted was the public school system and the captive audience of children found there. 86 Immigrant children were particularly targeted. 87 Schools used children's books that were designed to teach "devotional rites of patriotism" 88 and that required children to memorize questions and answers in a manner reminiscent of a religious catechism. 89 By the late r88os, public schoolteachers had begun to experiment with other ways to increase patriotism, such as the ritualistic Pledge of Allegiance. 90 Today, participating in flag ceremonies, pledging allegiance, teaching American history, observing national anniversaries, and teaching civics have all become central elements of public school education. 91 The essence of totalitarian indoctrination is its completeness. 92 Just as totalitarianism in society seeks complete subordination of the individual,93 totalitarianism in public schools seeks the destruction of a child's autonomy so that the state can mold the child according to its desires. 94 American society effectively prevents totalitarianism from taking root outside of the school context. Public education, however, is authoritarian by nature. And wherever there is power, there is a temptation to abuse

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that power. 95 Therefore, totalitarianism in American public schools is not a purely imaginary concern, even in a democratic society. The best defeme against the thought control of totalitarianism is the development of individual minds, which illustrates why compulsory education must not be allowed to subvert the right of free expression. In considering compulsory education's troubling implications for the First Amendment, it is important to emphasize what should not be deemed primary constitutional concerns. Although it is certainly conceivable that students' First Amendment rights could be threatened in a school setting, 96 there is no such danger from a school's curricular choices. No student has a First Amendment right to have certain topics or subjects taught, or not to have them taught. 97 Similarly, preemptive curricular decisions-whether made by school principals, school superintendents, school boards, or state-level school officials-do not violate the Fir:;t Amendment rights of teachers. Whatever the scope of a teacher's Fir:>t Amendment right to speak outside the four walls of the school or to discuss in school matters unrelated to the curriculum, 98 a teacher has no constitutional right to teach the topics or substance of his choice. 99 This is true as a constitutional matter, regardless of how one feels about the issue as a matter of educational theory. 100 The teacher serves as an agent of the state; he is placed in his position in the classroom because some governmental agency has chosen him to convey information and reasoning processes to students. Because the state has chosen to have a system of compulsory education, it is reasonable that the state should have the final say as to what subjects are taught and what substance is conveyed about those subjects. The classroom, then, is not a public forum where a teacher has a private First Amendment right to communicate. The First Amendment concern raised here is somewhat more subtle and indirect than the concerns raised by direct interferences with the protected rights of either teachers or students to express themselves. The focus here is on potential governmental interference with the conditions that are necessary to create and maintain a viable system of free expression. Such interferences may be as harmful to tree speech interests as any direct infringement, even though they do not, in and of themselves, directly impinge upon free speech rights. For example, a prohibition on a newspaper's ability to purchase publishing supplies would undoubtedly raise First Amendment concerns, even if it did not directly prohibit the newspaper from publishing. As already noted, the same can be said of such ancillary First Amendment rights as the right not to speak, the freedom of thought, or the right to associate. In each case, interests that the First Amendment is clearly intended to protect are threatened, even if expression is not directly restricted.

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It is true that the type of indirect interference that is of concern in this context is qualitatively different from the interference prevented by the other examples of ancillary First Amendment protections. Each of those guarantees negatively impacts a particular individual who may then sue to vindicate her own personal right. When government crosses the constitutional line in the scope of its curricular and noncurricular education, no single individual student is harmed more than any other. This does not mean, however, that the harm to constitutionally protected interests is any less real. As the examination of the totalitarian use of compulsory education so forcefully demonstrates, if abused such a system can be anathema to the needs of democracy and free expression. Preserving a right of free expression for brainwashed automatons would be a hollow protection indeed. Although I certainly do not intend to suggest that the American educational system brings about such an extreme result, or that education in the United States has been manipulated by government in the manner used by Mussolini or Stalin, it would be naive to conclude that the public schools have never been used to serve governmental ends. Recognition of the potentially troubling First Amendment implications of the compulsory educational process, however, begins rather than ends the constitutional inquiry. No one, of course, could reasonably suggest that the basic concept of compulsory public education violates the First Amendment. Indeed, this conclusion would bring about a truly Orwellian result by destroying in the name of democracy a system that is universally recognized as essential to the viable operation of democracy. Democracy requires widespread public education. 101 Therefore, some agent of the government will have to make substantive choices in determining what to teach and what not to teach. Thus, if one is to avoid throwing out the democratic baby with the constitutional bath water, one must devise some method to distinguish the constitutionally troubling aspects of a state-created curriculum and educational process from those aspects that are not only acceptable but politically essential. Before one can effectively sort out the conceivable doctrinal approaches to this complex First Amendment issue, however, one must explore the foundational theoretical intersection between education and democracy. For it is only with that theoretical background that a choice among the competing doctrinal alternatives can be coherent. In undertaking this theoretical analysis, however, it is important to clarify the conceptual focus. Because I examine the intersection between educational theory and democratic theory in order to resolve the paradoxical First Amendment problems to which the intersection gives rise, I focus the theoretical inquiry on that paradox. Thus, my analysis explores the implications of modern educational theory specifically for the process of values

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education. In other words, the inquiry is, to what extent is it either appropriate or essential for the educational process in a democratic society to convey predetermined societal values as part of the educational process?

EDUCATIONAL THEORY, DEMOCRACY, AND THE TEACHING OF VALUES

Values Inculcation and the Role of Public Education

It is nearly impossible not to convey some value judgments in the process of educating students. Both the selection of topics to be taught and decisiollls about what is to be taught concerning each topic inherently imply certain choices as to social, moral, or political values. The so-called history wars of the mid-r990s illustrate this problem. In the fall of 1994, a governmentally appointed task force developed "national history standards" for the nation's educational system. 102 Politicians and commentators challenged the draft standards as being too politically correct and for downplaying "dates, facts, places, and events" in an effort to rewrite history. 103 Regardless of which side of this debate one ultimately favors, the implications for present purposes should be clear: it is unrealistic to believe that seemingly value-neutral curricular choices are completely free from significant, if often unstated, substantive value judgments. This does not mean, however, that the process of values inculcation cannot be reduced or expanded according to how central one deems the conveyance of such values to the educational process. Educational scholar James Watkins has suggested four possible ways to approach the question of values inculcation in the course of the educational process: (r) ignore it in order to prevent improper indoctrination; (2) assist students in clarifying their personal value systems; (3) teach students some procedural method that they can use to evaluate morality in a reasonable and objective rather than emotional or irrational manner; or (4) openly teach a predetermined set of express moral values. 104 As this discussion intends to make clear, the choice among these options cannot properly be made without placing educational theory in the broader context of American political theory. This section considers the alternative ways in which educational and political theory might intersect. Determination of the nature and scope of that intersection will, in turn, determine the role that values inculcation appropriately plays as part of a democratic society's educational system.

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Teaching the Good Life: The Values-Enclave Approach

One conceivable approach to the values problem within the educational system would be to openly embrace the values-education intersection. According to this philosophy, the conveying of substantive values is not only a necessary evil but actually an appropriate means, and arguably the best opportunity, by which to instill community values in the nation's youth. 105 Those who advocate such an approach could make the following argument: In a democratic society, government cannot be allowed to force its citizens to adopt a particular set of social or moral values, at least as a purely constitutional matter. However, if society is not to degenerate into a series of unconnected or conflicting interest groups loyal to no one but themselves, government must be permitted to take advantage of the educational process in order to instill in children a largely consistent set of socialized values. 106 It is at this stage of life that individuals' cognitive morality may be shaped. 107 Of course, once students leave the educational system they will be able to act as the autonomous citizens contemplated by democratic theory, but they will do so armed with the socialization effected through education. This approach is properly characterized as the "values-enclave" model, because it views the educational process as an island of values inculcation within a sea of individual autonomy. Such an approach fits well with the modern revival in American political theory of civic republicanism, which disdains the narrow, pluralistic pursuit of private self-interest and favors instead a communitarian-based pursuit of the common good. 108 However, in a number of ways the values-enclave model appears to pay considerably more homage to individual autonomy than do most forms of modern civic republicanism, which largely deny such independence even to adult citizens. Of course, if one were to accept fully the precepts of modern civic-republican theory, one would presumably not need to make such concessions to democratic individualism.109 The point of the values-enclave theory, however, is that even if one were to reject the teachings of civic republicanism, one could nevertheless accept its essential premises solely within the confines of the educational system. From this perspective, values inculcation through the educational process could be deemed a political version of a zoning ordinance: a certain restriction on expressive activity is considered acceptable only as long as it has been confined to a circumscribed area. In this manner, society acquires the benefit of the activity but avoids the risk that it will over-

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run the entire community. According to this rationale, government-run schools could dictate to students that patriotism is important, that the races are equal, that individuals have the right of sexual preference, or that drugs and tobacco are harmful, even though the government could not constitutionally preempt debate on the accuracy of those postulates in adult political society. If this argument were accepted, then the socalled democratic-educational paradox would be rendered a complete nonissue: There is no paradox, because there exists a fundamental dichotomy, grounded in sound precepts of political theory, between the educational process and the political operation of adult society. Under this reasoning, then, it would be perfectly proper for government to use its schools, both within and without the curriculum, as a means for instilling in the nation's youth a set of shared values. Because public education is, for the most part, not shaped at a national level but rather by state or, more often, local governments, there would be no way to ensure that students throughout the nation learn uniform values. But that fact may actually work in favor of the civic-republican model, because it reduces the dangers of tyranny that might otherwise be associated with it. 110 In any event, it is likely that many of the substantive values taught would be identical, including patriotism, racial and gender equality, and opposition to drugs and tobacco use. The civic republican model is nevertheless troubling on a theoretical level for several reasons. One of those reasons concerns issues of democratic process. Traditionally, it has been thought that education is essential preparation for an individual to function in a democratic society as an a.utonomous, free-thinking entity. 111 But if that is true, then an educational system that openly seeks to instill unquestioning belief in a predetermined set of values can hardly be deemed proper preparation for such autonomous thought processes. Indeed, use of that model would seem to seriously undermine the goal of producing free-thinking individuals. Such an approach appears to bear ominous similarities to the strategies used by totalitarian societies in an effort to produce submissive mental automatons. Therefore, this approach arguably undermines the meaningful exercise of free expression by adults because the adults it produces will, for the most part, 112 be incapable of the meaningful exercise of that right. Mo:reover, allowing government to convey only select values to a captive and impressionable audience effectively distorts the marketplace of ideas, much the way that viewpoint-based regulations do.l 13 Rejection of the civic-republican model of educational-political theory doe1; not automatically imply that all values inculcation should be excised from the educational process. As some educational scholars have correctly note:d, "It is inconceivable for the schools to take the child for six or seven

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hours a day, for r 8o days a year, from the time he is six to the time he is eighteen, and not affect the way he thinks about moral issues and the way he behaves. " 114 It does not follow, however, that government is appropriately granted carte blanche to use the educational process as a means for conveying to children a predetermined set of substantive values. The "Values-Clarification" Alternative: Focusing on Process Rather than Substance Proponents of a values-clarification approach recognize the potential for indoctrination inherent in educational theories advocating the transmission of values from school to pupil. They therefore seek to focus education on "the process of valuing, not on the transmission of the 'right' set of values. " 115 Justifications for use of a values-clarification approach differ. Some argue that moral education is "caught and not taught" 116 ; others fear indoctrination where schools have a substantive set of values 117; and still others see the futility of having schools inculcate morals. 118 But most agree that the best alternative is to have students "look at the lives they are leading." 11 9 Ultimately underlying the values-clarification approach is the belief that each person at some time or another reaches a point when she questions the values that she has learned; thus, indoctrination as part of the educational process only postpones the inevitable. 120 It is far better for schools to "teach appropriate ways of responding to moral issues and concerns" than it is to instill a specific set of values through moral education.121 This is especially true in American democratic society, where "there is no antecedent social blueprint which is itself to be taken as a dogma immune to critical evaluation in the public forum." 122 The theory of values clarification has waned considerably since its heyday in the mid-1970s through mid-r98os, 123 because critics observed that the approach treated children as if they were adults who had already formed sound moral opinions and offered no standard for distinguishing between what students might want to do and what they ought to do. 124 Thus, critics feared that values clarification would encourage students to develop ethical relativism, where each student's own set of moral values is no worse than any other. 125 Some even argued that values clarification was more like therapy than an educational philosophy. 126 A values-clarification approach seeks to expose students to alternative value structures while simultaneously avoiding the dangers of indoctrination inherently associated with the values-enclave approach. Those espousing notions of the "good life" flaunt notions of epistemological hu-

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mility and implicitly reject fundamental democratic principles by failing to allow for differences of opinion as to what is "right" or "true." 127 Values-clarification proponents, on the other hand, deny (or at least doubt) the ability of schools to select the "right" values and virtues to transmit to students, and recognize either that there is a risk that the school will be wrong or that it has no place advocating one set of values no matter how "right" it may appear to be. 128 Nevertheless, these concerns illustrate how values clarification itself goes awry, for if the school will not know what values are "correct," and if it is not the school's place to choose values, how is the educational process any better if the school introduces the subject of values and has the students speak openly about their own values? Surely the disapproval (even if expressed in a very minimal, unintentional way) of an authoritarian teacher or peer pressure from a majority of a student's classmates could undermine a particular student's values. Thus, the theory raises a concern about the ability of schools to actively shape or even address values in the first place, especially if these values are not tied to the curriculum. Although values clarification starts students along the road toward critical thinking, it does so at a distance. Indeed, when detached from academic endeavors, values clarification does seem more like therapy 129 (or some version of the Socratic dialogue used in law school), during which students are not told where to go but are encouraged to find the answer themselves. This seems to be a dubious and dangerous method, especially as applied to younger students. The "Cognitive" Alternative: Promoting Critical Thinking

As a general matter, no one worries that the government is seeking to "indoctrinate" adults when, for instance, the president gives his State of the Union address or some administrative agency issues a report on an issue of national concern. The reasons are obvious: adults are not a captive audience compelled to listen to the government's speech, and often another party presents competing speech as a countermessage. Moreover, although young minds are not fully developed and presumably are more susceptible to indoctrination because they lack the ability to think critically and evaluate messages, we presume adults are capable of analyzing the variety of messages they hear on a daily basis. If one begins with the premises that schools' inculcation of values raises social and political concerns but also that schools cannot practically or theoretically exclude all values discussion and analysis from the educational process, then the most reasonable alternative may be for

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schools to confine their values inquiry to an exploration of the process by which value choices are made. 130 After all, in the adult world individuals must regularly make value choices. Adults are constantly presented with competing messages in political, social, and economic realms. Each of us must make an individual choice to accept some messages and reject others. It would be counterproductive, then, to educate children for more than a decade in an environment in which the state preselects all their values. Surely such an educational system will do little to prepare individuals for the lives they will someday lead. 131 Those who consider the purpose of education to be to prepare individuals to function as citizens within a democratic society have often recognized critical thinking and cognitive reasoning as essential elements of educational philosophy. 132 Richard Arneson and Ian Shapiro, for example, argue that the "development of skills and habits of critical thinking" is the key to educating for autonomy. 133 Rather than instinctively acting from some conditioned response, the student skilled in the practice of critical thinking is "capable of standing back from her values," reconsidering them in light of the circumstances, and then adjusting them if appropriate.134 Thus, regardless of a child's upbringing, the ability to think critically and to reason cognitively is necessary to enable each child to evaluate her environment over time. One can see how critical thinking and cognitive reasoning attempt to fill in the gaps of the earlier models. The key to preparing students for adulthood is not the indoctrination of values that will undermine the child's ability to think and act autonomously, which they will need to do as adults in a democratic state. 135 Nor is it striving toward the impossible goal of valueless education. Nor is it solely about the "clarification" of one's values so that one does not challenge or change one's assumed val· ues. Rather, critical thinking entails the ability to recognize one's own values, evaluate them constantly, and adjust them when necessary. 136 These skills are vital whenever one exercises one's democratic rights, either in deciding for whom to vote or choosing more actively to engage oneself in the political arena. 137 Of course, school is not the same environment as the adult world, and children are not expected to be autonomous individuals. Amy Gutmann parted ways with the liberal view that the educational system should remain as value neutral as possible for these reasons. She argues that children cannot be taught principles; rather, they must be taught rules. 138 Only after they understand the rule can children begin to learn the reasons supporting it. 139 If what Gutmann says is true, one faces another paradox: Students should think critically about their lives and the world, but to do so, they must have some sense of how to rank and evaluate the

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things that the nation (or local community) values. However, in giving students a sense of how a group of elders values certain things, society risks indoctrinating them and destroying their ability to reason, to think critically, and to challenge their elders' values. One possible escape from this paradox is to say that private individuals, such as a child's parents, should provide the substantive values, and that schools should teach only the process of critical thinking. 140 Summary: The First Amendment and the Misguided Ideal of a Valueless Education

For the most part, acceptance or rejection of the theories examined in this section turns on issues of educational and political theory, rather than on issues of constitutional law. It is difficult to imagine, for example, that the First Amendment could somehow be construed to require government to use the cognitive model or the values-clarification model as controlling educational theory. The choice among most of the conceivable models of intersecting educational and political theories turns on issues of social and educational policy that are not, in a democratic society, properly made by unelected and unrepresentative judges. It does not necessarily follow, however, that no conceivable choice-ofvalues methodology could have First Amendment implications. Unless one adopts-mistakenly, I believe-the epistemologically arrogant version of modern civic republicanism as controlling American political and constitutional theory, governmentally orchestrated values inculcation of a captive and uniquely impressionable audience cannot be consistent with the notion, fundamental to democratic theory, that government is responsible to a free-willed and free-thinking electorate. Even in a democratic society, government need not and could not be totally value neutral. Any government makes normative choices. That different elected officials would, at least in some cases, make different normative choices is, after all, the very reason elections are needed in the first place. Moreover, government may appropriately seek to influence public attitudes on normative issues by making its own contributions to public debate. But just as government may not shape that debate by selectively censoring private expression, it should not use the educational process as the basis for naked values inculcation. One might make an argument, following the path laid out by democratic theorist Robert Dahl, that an exception to the constitutional prohibition on naked values inculcation in the educational process should be made for teaching the value of democracy itsel£. 141 Otherwise, the argu-

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ment would proceed, the system of free expression could lead to the counterproductive destruction of the very political values that make free expression both possible and meaningful. 142 But this logic proves too much, for it would also lead to the selective suppression of antidemocratic speech. 143 After all, if such speech is sufficiently persuasive, it could also lead to the destruction of the American democratic system. Although respected scholars have occasionally advocated this conclusion,l 44 there can be little doubt that it would contravene the well-established First Amendment prohibition on viewpoint-based regulation. If, as argued here, selective-values inculcation through the educational process is the equivalent of viewpoint-based regulation, then there is no reason to make an exception for democracy promotion for purposes of the former than there is for purposes of the latter. Note, however, that I do not say that the educational process can never be used as a means of values instruction. I merely argue that under the First Amendment it should not be used as a means of naked values inculcation, by which I mean a process of inculcating values in students that is not ancillary to or intertwined with the teaching of nonvalues based academic courses. It would be folly to attempt to divorce completely the educational process from the instillation of values, for the simple reason that the judgmental necessity 145 inherent in selecting what topics to discuss and what to say about those topics is an inescapable element of any educational process. However, when government seeks to inculcate values apart from this ancillary role in the process of educating students, it exceeds the limits of the First Amendment. The task assumed here is to explain how to separate inherent values education from naked values inculcation. Before describing my suggested approach for drawing that distinction, however, it is helpful to describe other suggested scholarly approaches to the First Amendment question, so that one may place the proposed First Amendment model advocated here in its broader intellectual context.

FASHIONING A FIRST AMENDMENT MODEL TO CONTROL VALUES INCULCATION IN PUBLIC EDUCATION

An Overview of the Doctrinal Options

A number of conceivable models exist by which to control values inculcation through the educational process. At one extreme, one could argue

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that whatever First Amendment problems plague the educational process, it is infeasible and unrealistic for the judiciary to exercise any meaningful control over what or how a school teaches its students. Therefore courts should generally abstain from interfering with either of those choices. 146 At the other extreme, some commentators have suggested that the courts should effectively transport traditional First Amendment analysis into the classroom. 147 For a variety of reasons, neither of these options provides a viable solution to the problem. As will be seen, it is possible to fashion some limitations on governmental power to inculcate values through the educational process, although the practical realities of the situation impose obvious restrictions on the scope of judicial power to do so. 148 For theoretical reasons already discussed, however, it is improper to treat the relevance of the First Amendment in the educational context as fungible with its role in adult society. 149 Nevertheless, scholars have also suggested several intermediate approaches. The following subparts provide a critical analysis of these alternatives. The Abdication Alternative

Although debate may exist over the rationale underlying the abdication alternative, the nature of its operation is well settled. Adoption of this approach signifies that the judiciary should abstain from any involvement in a First Amendment challenge to a school's choice of what to teach. 150 Under this model, a court would base its decision not on a substantive assessment of the constitutional implications of the challenged school action, but rather on a preliminary determination of the character of the legal issue being raised: Once the court determined that the case involved such a First Amendment issue, it would dismiss at least ~' that part of it without ever considering the merits. 151 Scholars advance two rationales for the abdication alternative, one theoretical and the other pragmatic. On a theoretical level, a court relying on a version of the civic republican model could reason that it is perfectly appropriate for society to attempt to inculcate a predetermined set of values through its schools.l 52 Accordingly, government may develop a sense of community among its citizens by engendering a set of shared fundamental values among students whose thought processes have not yet fully evolved. 153 Under this view, the First Amendment is not necessarily superseded, but is instead confined in its application to situations in which government seeks to censor or suppress the expression of adults on the basis of disagreement with the views being expressed. 154

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The pragmatic rationale for the abdication model is that it is simply too difficult for courts to distinguish between the acceptable transmission of values through the curriculum and the impermissible transmission of values through the educational process. However one ultimately defines the concept of curriculum-broadly155 or narrowly-such a distinction would merely encourage schools to label everything they are doing as "curricular" so as to skirt review by the courts. The fight would therefore become a definitional one. The abdication approach ignores the method that the state uses within the curriculum and thus allows the school to instill values in any manner so long as there is a tie to the curriculum. 156 This absolute deference to the school goes too far and threatens individual autonomy through indoctrination. Thus, the abdication alternative suffers from several defects: it is definitionally difficult to establish and administer; it encourages schools to be devious; it fails to properly limit government speech when some activity or lesson is defined as curricular but actually indoctrinates students; and it fails to draw distinctions within the curriculum. The Fairness Model

An alternative model would require schools to explore all the competing approaches to issues of moral value. 157 In this way, the approach's advocates may argue, students will be exposed to a variety of moral frameworks and schools will not discriminate against particular viewpoints. In a sense, this approach parallels the Federal Communications Commission's (FCC) fairness doctrine, established in the 196os but long since abandoned, which required radio and television broadcast stations to provide an opportunity for the expression of different sides of public issues. 158 In Red Lion Broadcasting Co. v. FCC, the Supreme Court upheld the constitutionality of the doctrine. 159 Because of its similarity to the FCC's doctrine, this approach may be described as the "fairness model." Robert Kamenshine has made the most prominent attempt to apply the rationale of broadcasting's fairness doctrine to First Amendment restrictions on school curricular decisions. He argues that the First Amendment contains an implied political establishment clause that "protect[s] the free speech values on which a democratic system depends from the specific threat posed by government propagandizing." 16 Kamenshine also argues that a constitutionally impermissible political establishment is created when schools present only one political viewpoint on an issue. 161 Kamenshine is not alone in his support of the fairness doctrine. Other

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scholars have advocated variations on the fairness model, 162 and courts have adopted it as well, albeit implicitly. 16 3 On the most abstract level, it is probably accurate to suggest that if a reviewing court were to use the fairness model, it would effectively restrict the state's ability to indoctrinate the nation's youth through the public educational system. However, the model is plagued by numerous problems that render it unacceptable as a governing mode of First Amendment interpretation. On a purely practical level, the idea that courts could effectively enforce the doctrine is mere fantasy. The courts would have to police countless curricular decisions, perhaps on a daily basis. More theoretically, the idea that the Constitution requires schools to describe all viewpoints on issues of public importance, whether or not school officials deem those viewpoints valid, would seriously undermine the judgmental discretion inherent in the educational process. By its nature, the educational process requires the making of triage decisions. Not everything may be taught, if for no other reason than that there is insufficient time in the school year. Moreover, such an indiscriminate form of information transmission could produce considerably more confusion than it prevents. Therefore, it would create educational havoc to construe the First Amendment to require that schools teach students all sides of a public issue, regardless of whether educators have concluded, either because they believe there are more important things to teach or because they believe that some of the positions on an issue are wrong, that they should not teach some of those positions. Thus, although it is perfectly appropriate to be concerned about the government's ability to inculcate values in its captive and malleable student audience, the solution is not to compel the government to present a message directly opposed to its position.164 If a school selects a history text that says that the Nazi Party killed six million Jews, it would be unreasonable to require the school to state also that there are those who assert that the Holocaust never happened or to spend time portraying the Nazis in a positive light. 165 Advocates of the fairness model correctly identify the major concern in public schools as the indoctrination of a captive audience of undeveloped and impressionable minds. However, their proposed solution suffers from numerous fatal flaws. The fairness model would effectively prevent educational officials from making fundamental pedagogical choices in framing a curriculum. Moreover, it would give rise to a nightmarish judicial quagmire by calling upon the courts to determine exactly what in the school's curriculum is political, controversial, or unfair, and therefore subject to the First Amendment's requirement of fairness. The fairness approach, then, is a classic illustration of a cure that is considerably more harmful than the disease.

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Procedural and Structural Models

The doctrinal models considered to this point have focused on attempts to control the actual process of values inculcation. It is possible, however, to fashion an approach that seeks to act in a prophylactic manner by regulating the procedural or structural aspects of the educational process. The underlying theory is that abuse is least likely if the process of curricular choice is regularized. 166 Procedural and structural approaches possess the practical advantage of relative ease of application and enforcement. 167 One such approach attempts to avoid improper values inculcation by assuring that substantive curricular choices are made by professional educators rather than political officials. Of course, it would defy reality to suggest that the political and educational processes can be completely divorced from each other. Every state constitution addresses the legislature's responsibility to provide for a public school system, 168 and although the common perception is that control is exercised primarily at the local level, school districts possess only the power that the state government has granted them. 169 Because such legislative delegation is common, however, Mark Yudof has argued that the best means by which courts may check the government's attempts to inculcate values in the public school setting is by what he has termed the "doctrine of irrevocability of delegated authority." 170 In other words, although the state legislature is not constitutionally obligated to delegate educational decisionmaking authority, if the legislature chooses to do so the First Amendment bars the state's selective retrenchment of that delegation. The rationale for such a standard is the categorical assumption that such individualized revocations will inevitably reflect the undue influence of the political process on the educational system.1 71 Conceivably, one could narrow the acceptable decision-making chain of command even further in an attempt to prevent unconstitutional values inculcation. For example, one might reason that the only effective means of ensuring that government does not manipulate the educational process as a means of political indoctrination is to require teachers, rather than administrators or other government officials, to make all curricular decisions. 172 As a practical matter, such an approach could best be implemented by recognizing a teacher's First Amendment right to make curricular decisions within her own classroomY3 Use of such a doctrinal model, however, would undoubtedly give rise to intractable problems. It is true that to a certain extent teachers have First Amendment rights to engage in expression and association outside

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of the school setting. 174 But as teachers they have been hired by the state to perform a certain communicative function, and are being subsidized to do so. An individual hired to serve as official spokesperson for the mayor, for example, cannot reasonably claim a First Amendment right to communicate, in her official capacity, derogatory opinions about the mayor. 175 In a fundamental sense, public schoolteachers within the classroom are operating in an identical manner, as the selected communicator of information and opinion formulated by their employersP6 To be sure, as a practical matter school administrators may often choose to delegate to teachers the authority to shape the individual class curriculum. But if they do so, it is a decision grounded in convenience and educational philosophy, not First Amendment theory. 177 Of course, one may believe that the rationale for recognizing an individual teacher's First Amendment right within the classroom is grounded not in the view that the teacher actually has a free speech interest in controlling what is taught but rather in a strategic desire to diffuse power over the educational process and thereby reduce the danger of monolithic and authoritarian values inculcation by the government. If so, the validity of the theoretical arguments undermining an individual teacher's First Amendment right to curricular control is irrelevant. Of course, it is easy to imagine specific instances in which mindless bureaucrats seek to stifle educational creativity by denying a teacher discretion to teach a particular topic or in a particular manner. But it is important to recall that a teacher's First Amendment right to control her classroom is determined without considering what the individual teacher wishes to teach. 178 The idea that educational officials could not constrain teachers in making curricular choices could lead to disastrous results. Nevertheless, it is not feasible to confine the teacher's right only to those situations in which the teacher is exercising good judgment, because this approach would effectively replace professional educators with judges as appliers of this standard. In rejecting a teacher's First Amendment right to control classroom content, it should be emphasized that I am by no means unsympathetic to the constitutionally based concern about concentration of educational decision-making power in the government. After all, in communist educational systems teachers are closely monitored by their superiors. 179 But the alternative conclusion, that the First Amendment does not permit local educational officials to impose meaningful substantive limits upon what teachers may teach, could lead to such a parade of horribles that it must be rejected, despite its positive impact on the serious First Amendment problems caused by governmental values inculcation in the educational process. 180

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An alternative procedural model might focus on the need for parental or student involvement in the creation of curriculum as a means of diluting governmental inculcation of power. 181 Under such an approach, courts would require school systems to open their curricular processes to parental and student involvement, presumably through some designated procedure. This model, however, fails to provide a more satisfactory answer than any of the other approaches. Although the approach arguably dilutes government's ability to provide a monolithic analysis of value choices, it may cause considerably more trouble than it is worth. One could easily imagine curricular chaos developing as a result of including students and parents in the decision-making process. Moreover, there is no guarantee that parents will disagree with government on key political, moral, or social issues. The Preferred Alternative: The Anti-indoctrination Model

To this point, it has been established that (r) allowing government to inculcate values through the educational process poses a serious threat to key First Amendment values, and (2) the alternative doctrinal approaches considered to this point fail to avoid those dangers, give rise to potentially chaotic and harmful judicial interference in the educational process, or both. However, one alternative does exist that, although not free of problem or difficulty, significantly reduces the threats to protected First Amendment interests: the anti-indoctrination model. The anti-indoctrination model does not advocate judicial secondguessing of all education officials' pedagogic decisions that convey-either intentionally or incidentally-particular value choices to students. Rather, the anti-indoctrination model seeks to resolve the democratic-educational paradox by recognizing and accepting the logic underlying the concept of judgmental necessity. When, because of judgmental necessity, a school makes what are on their face value-neutral educational choices-for example, what subjects to cover, what portions of those subjects to emphasize, or what to say about those subjects-the anti-indoctrination model would cede to educators' substantial (although not unlimited) discretion. Thus, the model begins with the understanding that because schools are naturally unable to teach everything, some agent of the government will necessarily make choices concerning the content of the curriculum. In fashioning the anti-indoctrination model, one must recognize that value preferences will inevitably tinge pedagogic decisions, but to completely eradicate all possibility of values inculcation would effectively reduce to a null set the category of information and opinion that

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teachers could constitutionally transmit to students. Of course, given recognition of the dangers to First Amendment interests caused by in-school values inculcation, in an ideal world one would be able to separate those situations in which values inculcation is simply the necessary by-product of essential pedagogic choices from those situations in which government is consciously attempting to manipulate the educational process in order to instill in students predetermined sociopolitical values. For obvious reasons, however, the drawing of such a constitutionally grounded dichotomy is an impossible goal, both on practical and theoretical levels. Thus, the anti-indoctrination approach candidly acknowledges judicial impotence in the face of educators' exercise of necessary pedagogical discretion concerning curricular choices. When, however, the inculcation of values is accomplished not as an inherent byproduct of pedagogical choices but rather as a gratuitous effort by school officials to influence the future political, social, or economic views of their students, the constitutional limitations imposed by the anti-indoctrination model would be triggered. Under the anti-indoctrination approach, an important inquiry would focus on whether the challenged activity took place within the confines of the curriculum. Although not everyone agrees that the curriculum is the most important component of the educational process, 182 it has been the focus of attention for politicians, 183 community activists, 184 courts, 185 legal scholars, 186 and many educational theorists. 187 The simple fact is that the curriculum constitutes the substance of what schools teach their students. Moreover, it would be practically and theoretically impossible to completely divorce the substance of the curriculum from all value choices. The choice of what aspects of a subject area to emphasize and what to say about those particular areas inherently convey certain value choices. To prohibit schools from conveying values, then, would effectively preclude schools from teaching anything. However, when schools convey values apart from the teaching of particular subjects, this concern is no longer present. Therefore, courts conceivably could adopt a First Amendment standard that turned on whether or not the challenged transmission of values took place within the confines of the curriculum. 188 At first glance, this standard seems properly grounded in both theoretical and pragmatic considerations. On a theoretical level, this doctrinal dichotomy arguably represents the most reasonable means of reconciling the democratic-educational paradox. On a pragmatic level, such a doctrine would seem to have the benefit of ease of application. Closer examination reveals, however, that at least some of the doctrine's supposed benefits may be illusory. First, one might suggest that a school's extracurricular activities are ascentral to its function as is the curriculum. 189 Sec-

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ond, one might argue that even if one did accept the theoretical validity of the curricular/noncurricular dichotomy, defining the concept of the curriculum will often be a difficult task, at least at the margins, thus giving rise to substantial unpredictability and the excessive use of judicial time. It is possible, however, to fashion responses to both arguments. As to the former contention, although extracurricular activities may be as central to a school's function as the curriculum, it is unclear, at least in the majority of situations, that the transmission of political, moral, or social values is as fundamentally intertwined with extracurricular activities as it is with the teaching of course work. A school can, for example, operate sports teams or an art club without necessarily conveying anything except the most abstract value choices. However, the situation may differ if a school operates a newspaper or sponsors a play. Here, like the curriculum situation, a school is faced with an important element of judgmental necessity: something has to be chosen. Thus, although it may be theoretically possible to determine whether a school selected a particular play or an individual newspaper article as a means of values inculcation, making such an inquiry would probably give rise to many more problems than it solved. 190 Accordingly, it would make sense in this context to use the same reasoning that led to the adoption of the curricular/noncurricular model in the first place. The Supreme Court has interpreted curriculum to include most extracurricular activities. In Hazelwood School District v. Kuhlmeier, the Court held that "school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school" are "part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences. " 191 This definition appears to go far beyond suggested scholarly definitions of curriculum, which have focused on "the conveying of information or the teaching of academic or vocational skills to students by faculty members." 192 It would not necessarily follow, however, that schools should have complete control over the nature of extracurricular activities. Because of the First Amendment concern over potential values inculcation, under this doctrinal model schools could not establish activities that were, on their face, inherently tied to a normative position on an issue of values choice. For example, were a school to establish a "capitalism" club, or a "Young Democrats" club, or even a "racial tolerance" club, the logic of the antiindoctrination model would deem these activities unconstitutional. 193

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A tougher doctrinal question is posed by extracurricular activities that do not directly commit to a particular normative position but whose very existence appears to assume such a position. For example, junior chamber of commerce activities do not directly deal with the inculcation of values, but their very existence presumes the validity of key normative economic assumptions about the value of capitalism. Arguably, such indirect values inculcation could be deemed even more insidious to First Amendment interests for the very reason that it is furtive in nature. Thus, acceptance of the approach suggested here would seem to exclude such activities. In determining which activities inherently cross the constitutional line, one may draw a rough analogy to Establishment Clause jurisprudence. As the Supreme Court has interpreted that Clause, schools may discuss religious issues; they are, however, prohibited from promoting either particular religions or the idea of religion. 194 By way of analogy, under the anti-indoctrination model schools could sponsor debate clubs that debate the issue of abortion; it could not, however, sponsor a pro-choice or prolife club that was established for the purpose of promoting one side of a political issue. Within certain confines, however, the anti-indoctrination model would cede to schools free reign if the concept of judgmental necessity were applicable. In other words, if a school sponsors a play, it is naturally required to pick something. Therefore, the First Amendment would not be violated if, for example, the school were to choose the pro-racial tolerance play, A Raisin in the Sun, rather than some other play. But if it could be proved that the school's selections over an extended period unambiguously reveal a pattern of indirect ideological advocacy, a reviewing court could find that the school abused its discretion under the judgmental necessity exception. Under the anti-indoctrination approach, the inculcation of values could be deemed unconstitutional even within the four corners of the curriculum if there existed no reasonable relationship between the particular value or values conveyed and the substance of the course being taught. For example, if students in a mathematics class are taught that capitalism is evil, a reviewing court could conceivably conclude that no such reasonable relationship exists. The touchstone for the model's invocation, then, is whether or not the challenged conveying of values occurs as an inherent element of the educational process. If no reasonable relationship exists between the value conveyed and the subject taught, the model's rationale for allowing values inculcation disappears. To be sure, a reviewing court applying the anti-indoctrination model would inevitably face some difficult fact-based ambiguities. For example, questions might occasionally arise as to whether the event at which values are transmitted is properly characterized as part of the curriculum. In

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the overwhelming majority of cases, however, the answer to that question will be reasonably clear. Under the anti-indoctrination model, the curriculum consists of the substantive courses taught to students; it does not include assemblies or activities not officially intertwined with one or more of those courses of study. Thus, the pedagogical rationale underlying the anti-indoctrination model's concession to school officials does not apply to school-wide assemblies at which the value of racial toleranceor, for that matter, racial intolerance-is conveyed to the students. On the other hand, if the school teaches a course in the Holocaust, the anti-indoctrination model would not preclude the direct or indirect transmission of the value of religious tolerance. 195 The same would be true of a course in the history of race relations. However, if a reviewing court determines that, despite the school's characterization of the values transmission as part of a course, the supposed course consists of nothing more than the transmission of values, then the court may discard the "course" label as a sham. 196 In addition, factual questions presumably would arise as to whether or not the challenged value transmission was reasonably related to the substance of the course. Given the necessarily deferential assumptions underlying the anti-indoctrination model, a reviewing court would properly provide school officials with wide latitude on this question. However, at some point, such as when a teacher instructs students on the evils of capitalism during mathematics class, the connection becomes so tenuous that values inculcation can no longer be rationalized as an essential element of the educational process. It is likely that the anti-indoctrination model will be equally troubling to both those who are concerned about values inculcation in the schools and those who fear judicial interference in the schools. To those who fear the power of the educational process to engage in an invidious form of thought control, the anti-indoctrination model will likely seem impotent in its attempt to police such a serious constitutional danger. Undoubtedly, the model will also raise serious concern for those who fear that the judiciary would effectively sit as a super school board. In an important sense, both criticisms are completely accurate. The anti-indoctrination model gives school officials extremely wide latitude to fully insulate an intense values-inculcation process from effective judicial review. Yet the model simultaneously contemplates a significant increase in judicial interference in the educational process. Indeed, the model would clearly prohibit schools from celebrating patriotism, promoting the value of tolerance, or warning of the dangers of drugs or tobacco except within the confines of a clearly defined course curriculum, and even then only if such efforts are substantially related to the course's broader

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perspective, apart from the goal of values inculcation. Such an interference with the ability of school officials to shape students' exposure is by no means insignificant. At the same time, however, the anti-indoctrination model provides school officials with enormous unchecked discretion to transmit values through the traditional curriculum. The only defense of this seemingly over- and underprotective approach is, simply, that there exists no viable alternative approach that better reconciles the competing elements of the democratic-educational paradox. Put bluntly, the anti-indoctrination model's only advantage is that it does a better job at reconciling these concerns than any of the other conceivable approaches. However, although this is admittedly the model's only advantage, it is one that is also dispositive in the model's favor. 197

APPLYING THE ANTI-INDOCTRINATION MODEL

School Bulletin Boards

Schools commonly promote particular social values to their students by posting material on bulletin boards throughout the school. Teachers have occasionally raised First Amendment issues in cases in which they were prohibited from countering the school's message by posting material promoting their own positions on certain issues. Although the Supreme Court has never faced this question, the leading decision in the lower courts is Downs v. Los Angeles Unified School District. 198 In Downs, a teacher brought suit against his school district, challenging school officials' refusal to allow him to post materials on a bulletin board that reflected an opinion contrary to the one reflected by material already posted concerning the school's position on Gay and Lesbian Awareness Month, even though other teachers had posted material that supported the school district's position. 199 The Ninth Circuit rejected the challenge, reasoning that the school's bulletin board constituted speech on behalf of the school district. 200 The Ninth Circuit did not require viewpoint neutrality, even though traditionally the First Amendment demands at least that much of government, 201 because the material posted on the bulletin boards constituted government speech and was therefore subject to total control by the school district. 202 On a certain level, the court's analysis in Downs makes perfect sense. Once one recognizes the constitutionality of government speech, there is no point in requiring government to observe viewpoint neutrality in conveying its own viewpoint. Thus, once one acknowledges the authority of

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government to speak through its schools' bulletin boards, it follows logically that an individual teacher lacks a First Amendment right to use those bulletin boards to express contrary views. According to the anti-indoctrination model, the constitutional problem occurs not because of an interference with an individual teacher's right to speak, but instead because of an interference with the recognition of government's authority to use the bulletin boards for government speech in the first place. 203 The difficulty with the Downs court's analysis, I should emphasize, is not that the court recognized the constitutional validity of the concept of government speech, although there are scholars who have found the entire concept to violate the First Amendment. 204 It would be impractical to conclude that in a democratic society, government may not constitutionally communicate its positions on current issues to its citizens. The concern, rather, is exclusively with the constitutional validity of government speech in the unique context of the educational system. Under the reasoning of the anti-indoctrination model, government speech aimed at adults who are capable of judging its merits within the context of the public marketplace of ideas is completely constitutional, given that private counterspeech is for the most part readily available. However, government speech in the context of the educational system amounts to a dangerous form of governmental indoctrination that substantially threatens First Amendment interests. Therefore, government's ability to engage in this speech is to be tolerated only when not to tolerate it would render performance of the educational function all but impossible. The use of school bulletin boards for the posting of material unrelated to a class or supervised activity that on its face is value-laden does not seem to fit within this exception for educational necessity. One could reasonably question why government needs to have authority to convey its views on current sociopolitical issues through the use of school bulletin boards. The only rationale for this use appears to be the unique strategic advantage of this form of communication in persuading viewers to adopt the normative positions government advocates. This is particularly true, because those viewers possess especially impressionable minds and are exposed to government positions within the confines of an inherently authoritarian framework. Yet it is exactly that reason that triggers the special concerns of the anti-indoctrination model; although government may constitutionally convey its views on current sociopolitical issues to the public at large,· it may not do so within the confines of the schools apart from the incidental values inculcation inherently intertwined with the educational process.

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Textbook Selections

As a theoretical matter, a school's selection of textbooks should raise as many First Amendment problems as does a school's selection of its curriculum. Government inculcates value preferences in its students as much by selecting textbooks as by shaping the curriculum. 205 This can be particularly troublesome with a subject such as history, because studies have shown that history textbooks generally minimize the historical role of dissent. 206 By selecting history texts, a school ingrains in its students a particular understanding of American history, and the likelihood that they will be exposed to contrary perspectives is relatively minimal. 207 Thus, all of the constitutional dangers created by schools' process of values inculcation are reinforced by textbook selection. For the same reason that the First Amendment can play at most only a minimal role in policing a school's curriculum choices, it can also be of little use in controlling values inculcation through textbook selection. As in the case of the curriculum, a school's selection of textbooks is governed by the principle of judgmental necessity: some books must be chosen over others. For a court to second guess that choice would inevitably give rise to enormous problems of judicial interference in the exercise of educational discretion. On the other hand, judicial review of textbook selection would not be nearly as unwieldy as review of curricular choices. When a school shapes a curriculum, it makes countless pedagogic choices for each class. To allow meaningful review of each of those choices would potentially give rise to prohibitive burdens on the courts and disastrous interference with pedagogic decisions. Textbook choices at least would not involve the sheer number of pedagogic decisions made in shaping a course curriculum. Thus, a court arguably could more willingly question a school's choice of textbook than a school's shaping of the curriculum. However, it is clear that educators still must have enormous discretion in making textbook selections.

THE ANTI-INDOCTRINATION MODEL AND THE MCCARTHY ERA: TEACHERS' IDEOLOGY AND POLITICAL ACTIVITIES

At this point it is appropriate to consider the constitutional implications of the anti-indoctrination model for governmental efforts during the McCarthy era to exclude communists from the ranks of public school-

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teachers. One could arguably begin this analysis by noting that far greater personal harm is caused by the exclusion of a teacher on grounds of ideology than by government's control of curriculum or textbook selection. Unlike in the case of curricular or textbook choices, a particular individual suffers discrete harm when a school system penalizes a teacher for political expression or activities. Moreover, in that situation a direct prima facie violation of free speech rights has taken place, so a reviewing court need not invoke a merely prefatory First Amendment concern, as is so in the case of curriculum and textbooks. Finally, although the Constitution does not guarantee government employment itself, modern First Amendment jurisprudence long ago abandoned the specious right-privilege distinction as a justification for employment deprivations on the basis of the worker's exercise of protected speech rights. 208 Therefore, government may no longer justify firings on the grounds that the worker had no constitutional right to government employment in the first place. As demonstrated in the early portions of this chapter, political persecution in the schools played an important and, many would say, infamous role in American history during the McCarthy era. During this period, which extended roughly from the late 1940s to the late 19 sos, much of the nation became obsessed with a perceived internal threat of subversion from American communists. 209 In numerous communities, teachers possessing even the remotest connection to communist activities, as well as those teachers who refused to sign a loyalty oath, lost their jobs. 210 In many instances, the courts upheld such actions by school districts against First Amendment attack. 211 Today, it is probably fair to say, the constitutional conclusion would diametrically oppose the result usually reached in the 1950s. 212 On both political and moral levels, one should applaud the judicial move toward protection of teachers' individual rights of belief and political association. However, when one seeks to synthesize the individual teacher's rights with the broader role of public education as part of the American constitutional and democratic framework, the modern trendat least under certain circumstances-may not make sense. It is not clear that in utilizing the First Amendment as a protection for teachers' political activities, the Supreme Court has fully considered the logical implications of the democratic-educational paradox. Depending on which political or constitutional theory underlying the educational process one chooses to adopt, in some cases the decision to insulate teachers' outside political activities from school control may well be inconsistent with the implications of the initial decision to place the shaping of curriculum in the hands of democratically accountable authorities.

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For example, if one begins with the premise that the communitarianoriented values-enclave approach controls, then it would make perfect sense for a school to be allowed to pick teachers who will effectively and enthusiastically convey the values selected by the school district. Thus, if the school district chooses to convey a message about the values of capitalism, then it would be appropriate to exclude teachers of civics and history who are unable to convey that message effectively. By this reasoning, exclusion of communist teachers is simply one means of assuring that the chosen normative message is properly transmitted. Similarly, it would be appropriate today for a school district to exclude from a civics or history class a member of the American Nazi Party or the Ku Klux Klan if the district's chosen values include racial or religious equality. At the very least, under a values-enclave approach it would be illogical to recognize the power of schools today to exclude Nazis or Klansmen from the classroom but not the power of schools to exclude communists during the 1950s. The difference simply concerns the choice of normative values to be transmitted through the educational process. Surely the question whether values inculcation violates the First Amendment cannot turn on whether one agrees or disagrees with the value being conveyed. The response could be made that although schools may have the constitutionally valid authority to convey chosen values through the educational process and may therefore direct their teachers in curriculum decisions, it in no way follows that schools may exclude teachers for no other reason than that the teacher's preexisting ideology is inconsistent with the values selected. As long as the teacher actually teaches the prescribed material, the argument would proceed, the fact that the teacher herself may not agree with the content does not automatically imply her inability to convey the message. For example, as long as the teacher agrees to convey the message of the merits of capitalism, the fact that the teacher is himself a communist is immaterial. A school district could reasonably reply, however, that as a practical matter it is incapable of effectively policing in--class performance, and it must therefore proceed on the assumption that a communist teacher could not properly transmit a political value message so diametrically opposed to the teacher's fundamental political views. The same reasoning would apply to a Klansman who claimed that, despite his views on racial equality, he could nevertheless effectively transmit in class the school's message of racial harmony. It should be emphasized, however, that even under the highly deferential values-enclave model a school district should not be permitted to exclude communist teachers from all classrooms. Presumably, no value inconsistent with communist ideology is conveyed in a science or mathematics class. To permit a school district to exclude communists

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from such classes, then, would amount to naked punishment for the holding of unpopular political viewpoints-clearly a constitutionally unacceptable result. Even under the highly deferential values-enclave model (which I reject), the community should be deemed to possess adequate opportunities to instill its normative message in the minds of school children through its control of both the substance of the curriculum and the nature of noncurricular assemblies and programs. Whatever indirect message the community might wish to convey through the use of ideologically selective employment decisions should be deemed outweighed by the severe viewpoint-based chill that government would undoubtedly impose through the use of such hiring authority. Thus, the goal for a reviewing court would be to distinguish ideologically grounded exclusions, designed to facilitate a school's ability to transmit its chosen values, from such exclusions intended solely to punish the holding of unpopular political views. Although it is appropriate to reject the values-enclave model as a proper application of First Amendment principles, the important point to recognize is that probably the same conclusion would be reached even under the more speech-protective anti-indoctrination model advocated here. Recall that under that model, school systems are given significant discretion to shape the substance of the educational process. 213 This is not because one necessarily approves of a school district's ability to transmit certain preordained values to its students, as is the case under the values-enclave model. Rather, it is because purely as a practical matter one openly concedes an inability to fashion a means of policing the values-inculcation process inherent in the educational process without simultaneously undermining the school's ability to teach the substance of the curriculum. The simple reality is that courts must concede to educators the power to choose how and what to teach. In light of this important concession, it would be unreasonable to prevent a school district from excluding communists, Nazis, or racists from classes in which information or opinion contrary to their ideologies is to be taught. Educational officials who do not believe in a Marxist version of American history, for example, should have the power, cpnsistent with the First Amendment, not to hire a Marxist to teach the American history class, for no reason other than that she is a Marxist. Although under the anti-indoctrination model the state could not have as its primary purpose the inculcation of values, I have already conceded that it would be all but impossible to prevent all such inculcation indirectly, if only as an incident to the basic educational process. This is because by choosing what substance to teach in the first place-for example, whether Columbus was a hero or a genocidal murderer-the community will inevitably be engaging in a process of values

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inculcation, albeit in a somewhat diluted form. Thus, if the community concludes that, because of his or her ideological affiliations, a teacher cannot be trusted to teach the designated material in the manner contemplated by those in authority, the community's decision not to use those teachers to teach those courses could hardly be deemed unreasonable. This conclusion may at first appear counterintuitive both to those who are protective of the First Amendment right of free expression and to those who are highly critical of governmental treatment of American communists during the McCarthy era. But either because of political philosophy (as under the values-enclave model) or recognition of practical realities (under the anti-indoctrination model), the content of a public school's curriculum is, for the most part, properly viewed as a form of government speech. An individual possesses a First Amendment right not to be punished by government for holding unpopular political views. However, it does not follow that she possesses a First Amendment right to serve as a governmental spokesperson, chosen for the purpose of conveying a governmentally selected message.

CONCLUSION

Ironically, just as this chapter shapes its analysis in response to a paradox, so too is the approach suggested here arguably vulnerable to paradoxical lines of criticism. From a certain perspective, one conceivably could challenge the conclusion that government's ability to shape the content of the educational process gives rise to a serious problem for the First Amendment right of free expression. After all, in prescribing the content of the education of the nation's youth, government in no way directly denies adult citizens the right to speak in a public forum. Hence, it could be argued that the entire First Amendment problem to which I have attempted to fashion a constitutional response is completely illusory. From a wholly opposite perspective, however, my analysis is paradoxically susceptible to criticism for inadequately responding to the serious First Amendment problem that has been noted. Although seemingly deriving from opposite perspectives, the two lines of criticism share some important similarities: although both appear to have superficial appeal, they lose much of their force once the broader practical and constitutional contexts are recognized. On a purely formalistic level, it is true that government's ability to shape the content of the educational process does not technically invade an adult individual's ability to speak in a public forum or unrestricted en-

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vironment. However, it would myopically place form over substance to ignore the potentially ominous implications of government control over education on the meaningful exercise of free speech rights. As experience with totalitarian regimes has traditionally demonstrated, government's power to shape the minds of its youth through the inherently authoritarian educational process provides a foundational element of the broader power of thought control that is so essential to a totalitarian government's ability to effectuate its hold over society. Allowing supposedly free citizens to exercise the right of free expression when the government has effectively destroyed their ability to question and reason provides a rather hollow guarantee of free expression. Thus, it is both necessary and appropriate to insert the judicial review process at a preliminary stage in order to ensure preservation of the substance of the free speech right. One might respond that the dangers of totalitarian influence pointed to here amount to a straw man, because the reality is that American society is far different from the totalitarian societies that we fear. To a certain extent, the point is a legitimate one. Despite governmental control of the educational process, the American democratic tradition has undoubtedly assured the right of dissent far more effectively than any totalitarian society even purports to do. It would defy reality, however, to assume that the right to dissent from widely shared public values has been uniformly preserved throughout American history. Indeed, from the Alien and Sedition Acts to the suppression of dissent during the Civil War to the compelled patriotism of the World War I period to the Red Scare of post-World War I period to the McCarthy era itsel£, 214 the United States has often refused to tolerate substantial dissent from widely held political views. 215 Can one definitively assert that any or all of these periods of political and ideological suppression were caused, in whole or in part, by the ideological conformity induced by governmental control of the educational process? No. But at least as an intuitive matter, such an inferential leap seems sufficiently reasonable to justify the need for constitutionally protective measures. The criticism that the solution suggested here fails to solve this problem is partially true. But that is exactly the point: it is only partially true. One may readily concede that much of the potentially harmful indoctrination occurs in the shaping of the curriculum, and that the anti-indoctrination model is powerless to prevent that result except in the most blatant or extreme cases. It does not necessarily follow, however, that the model would be completely impotent in preventing improper values inculcation in the schools. Certainly, a not insignificant portion of the dangerous values inculcation takes place outside the context of the actual educational function, through school-sponsored assemblies, bulletin

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boards, distribution of advocacy material, and use of the Pledge of Allegiance. Indeed, values inculcation through these processes is in some sense more dangerous than more indirect, curricular-based indoctrination, for the very reason that it is unadorned by surrounding educational content. Thus, government officials intent on indoctrination may use the:;e extraeducational processes more freely and easily than they can through the more complex processes of selecting textbooks and the shaping of course content. When the dust settles, perhaps one may predict that at most the anti-indoctrination model could prevent I 5 to 20 percent of the improper values inculcation that occurs within America's school systems. But a reduction of I 5 to 20 percent is, after all, a significant reduction in the threat to First Amendment rights. Perhaps equally important are the social and political benefits that could derive from exposing the indoctrination dangers inherent in the shaping of the school curriculum, a reality generally hidden from public view. Thus, although judicial adoption of the anti-indoctrination model would not by itself cure the serious constitutional problem, the public exposure that would inevitably accompany the Court's adoption of the antiindoctrination model may do much to put members of the public on guaird against undue curricular-based indoctrination. As respected constitutional scholars have long noted, the Supreme Court is engaged in an ongoing moral dialogue with the public. 216 Thus, the Court's formal adoption of the anti-indoctrination model, accompanied by a clear articulation of the indirect, but nevertheless very real, constitutional dangers to which governmental control of the educational process inevitably gives rise, could play an extremely valuable role in awakening interested citizens to those dangers. There remains for discussion the final line of criticism, namely that the anti-indoctrination model constitutes a dramatic disruption of the educators' realm of expertise by the judiciary. This criticism is in a certain sense irol[lic, because the anti-indoctrination model has been developed to a large extent for the very purpose of assuring the preservation of educators' authority in the most fundamental aspects of the educational process. Thus, the model substantially preserves governmental authority to fashion the substance of the curriculum and to shape the contours of many extracurricular activities that are framed in a facially value-neutral faslb.ion. The simple response to this criticism, then, is that to the extent the anti-indoctrination model does interfere with educational discretion, it dloes so solely in areas in which the exercise of such discretion would give rise to an unacceptable threat to the meaningful exercise of First Amendment rights. When one applies the anti-indoctrination model to public education is-

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sues of the McCarthy era, one is left with complex and often counterintuitive conclusions. Even under this largely speech-protective approach, much of what is today widely deemed to have been the monstrous treatment received by communist-affiliated teachers may in reality have been totally consistent with government's proper role in the administration of a system of public education. Because government by necessity controls the structure and content of the curriculum, it logically follows that government can assure itself that those who are to teach that curriculum are fully competent to do so. If government properly deems a teacher's communist affiliation to be inconsistent with the effective conveyance of the information that the government wishes to be conveyed in the classroom, it is fully appropriate for it to use this criterion as a basis for exclusion. However, it is essential, for First Amendment purposes, that use of this criterion not degenerate from its proper instrumental form into an impermissible retributive form. Thus, in classes where a teacher's communist beliefs could in no way disrupt the nature of the pedagogical process, such as science, mathematics, or languages, use of political affiliation should generally be deemed unconstitutional.

CHAPTER SEVEN

Conclusion: The McCarthy Era as a First Amendment Laboratory

An enormous amount of historical scholarship has been published since the dramatic revelations of the 1990s concerning the Comintern and Venona documents. Historians have meticulously described the information contained in those documents, to the extent it has been made availab!le. They have extensively analyzed the implications of those documents in an effort to characterize and assess the actions of American communists, as well as those of the governmental and private institutions that shunned or punished them. To this point, however, there has been little or no reaction to these important documents from c~nstitutional scholars. This is unfortunate for two reasons. On a purely historical level, scholan: on both sides of the debate have a great deal to learn from the addition of a free speech perspective to the post-Venona version of the McCarthy era. For example, respected historians John Earl Haynes and Harvey Klehr have recently argued that the revelations of Venona, which conclusively established that American communists were heavily involved in Soviet espionage and espionage-related activities, largely vindicate much of the public and private reaction to American communists during that period. 1 This is because American communism-including its reprehensible and damaging espionage activities-"declined because of the determined campaign by anti-Communists of every political hue." 2 Their point, in other words, is that "[h]ad the U.S. government and the American public not adopted anticommunist policies, the [Soviet espionage agencies] and the CPUSA [Communist Party of the United States of America] would have happily continued as before." 3 Although it is not entirely clear from this statement exactly how far Haynes and Klehr believe it was appropriate for anticommunists to go in their persecution of American communists, it is at least conceivable that their point extends

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much farther than the First Amendment should allow. It is difficult to determine with any certainty whether the widespread harassment of American communists ultimately led to the end of the espionage activity. But at some point, even if one concedes-if only for purposes of argumentthat Haynes and Klehr are correct in their assertion that the intensity of anticommunist activity ultimately undermined American communist espionage, there must be some outer constitutional limit on what burdens the American government during the McCarthy era could impose on American communists. It is wrong to suggest that espionage activity may be punished or deterred by the loss of free speech rights in wholly separate contexts. To a certain extent, of course, it is simply common sense to believe that the United States government had every right to defend itself against internal espionage. Moreover, a detailed examination of the values and limits of free expression makes clear that espionage is not deserving of First Amendment protection. 4 However, many of the repressive measures taken by the government against present or former communists cannot be rationalized on this ground. For purposes of free expression, there is an enormous difference between espionage-the clandestine passing of classified or otherwise secret governmental information to a foreign power-and the discussion or advocacy of unlawful conduct. Once government seeks to regulate advocacy of behavior, all of the conceivable rationales for the constitutioni:tl guarantee of free expression are implicated. In the case of espionage, it is reasonable to conclude that none of the values or rationales of the constitutional guarantee of free expression is triggered. The reality of the McCarthy era, even after the Comintern and Venona documents were made public, was that espionage played only a limited role in both American communist activity and governmental response to that activity. In addition to espionage, American communists sought to persuade others to share their beliefs, to infiltrate private organizations from unions to civil rights organizations, and to shape governmental policies through the insertion of communists into government. The governmental response to these activities similarly extended far beyond efforts to stop or punish espionage efforts. It also included punishment for the advocacy of unlawful behavior, exposure of private political activity and beliefs, and the deprivation of jobs or benefits on grounds of politics and ideology. Some of these deprivations were legitimately instrumental in that they were designed to exclude communists from sensitive positions. Other deprivations, however, amounted to little more than governmentally imposed punishments for the holding of widely unpopular ideological positions. 5

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There can be no doubt that the revelations of the 1990s must significantly alter the appropriate historical perspective on the McCarthy era. They clearly establish that disloyalty to the United States served a central role in American communist strategy. Therefore it is not surprising that, as a result of these revelations, historians who had long portrayed American communists as the innocent victims of a quasi-totalitarian government and a paranoid and intolerant public have been placed on the defensive.6 But it is important not to allow the shock of those revelations completely to distort the previously critical perspective on governmental behavior during the McCarthy era advocated by the so-called revisionist historians. That the American communists are, as a historical matter, deserving of condemnation in no way automatically implies that the American government was free from blame. Although government may, within the framework of the First Amendment guarantee, appropriately protect itself against espionage by its citizens, the fact that a substantial segment of American communists may have engaged in such activities does not neoessarily make all those sympathetic to communist aims fair game on all fronts. Yet the American government vigorously sought to punish American communists and their sympathizers, without regard to whether or not they actually were engaged in espionage and often for activities wholly unrelated to espionage that-unlike espionage-do fall within the scope of the constitutional protection of free expression. Although the actions of both the American communists and the American government during the McCarthy era are appropriately deserving of varying levels of condemnation, the actions of private individuals and institutions during the McCarthy era are morally and constitutionally more complex. On one level, it may seem reasonable to criticize the numerous private actors who, during the McCarthy era, chose to shun American communists for no reason other than the offensiveness of their ideological positions. After all, it is probably fair to say that most of those shunned had nothing specifically to do with espionage, if only for the reason that they had no access to information that would be valuable to the Soviets. The shunning, then, was ultimately grounded solely in ideological intolerance, an attitude that is inconsistent with at least the nation's constitutional aspirations, if not its actual history. 7 From the perspective of American political theory, neither democracy nor free expression can function effectively without a foundational commitment to the tolerance of alternative political viewpoints. On a more immediate level, the blacklists created by powerful private individuals and institutions unquestionably caused severe personal hardships to many, who suffered for no reason other than their political positions. The view just described roughly characterizes the arguments tradition-

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ally made by many liberal commentators. 8 I have argued here, however, that although this position purports to be grounded in the traditions of democracy and free expression, in reality, it completely ignores those traditions, properly understood. Although it is surely correct to assert that the nation's democratic tradition insulates individuals from governmental punishment as a result of their political views, the nation's political theory is also grounded firmly in recognition of a dichotomy between governmental activity on the one hand and private activity on the other. 9 Liberal democracy cannot function effectively unless private citizens are allowed to make their own choices of political and ideological perspective. Thus, liberal democratic theory acknowledges an important distinction between governmental and private actors, because private actors need the opportunity to shape themselves in ways with which others might disagree. Although the constitutional guarantee of free expression restricts what government· may do, it is, paradoxically, that very same right that justifies the exclusion of private actors from the scope of the amendment's restrictions. Individuals may choose their own political views, but they cannot force others to accept them. Thus, just as American communists had a First Amendment right to choose their own political viewpoints, so too did other American citizens possess the constitutional right to shun them for choosing those viewpoints. For the right of nonassociation on grounds of political or ideological offensiveness is as fundamental a part of the First Amendment protection as is the right to choose one's own ideology. During the McCarthy era, American citizens had a wide variety of reasons for finding communist ideology deeply offensive. The economically based anticommunists, for example, found the idea of governmental control of business to represent a troubling loss of economic liberty and a serious threat to the economic prosperity associated with American capitalism. The religious anticommunists, in contrast, found the atheism inherent in communism to be wholly unacceptable. Moreover, many of them had experienced the horrors of communism firsthand in their native lands of Eastern Europe shortly after World War II. American liberals were repulsed by the inherently authoritarian nature of communist ideology, as well as the often monstrous violations of human rights associated with the Stalinist regime. American socialists, ironically, may well have been the staunchest enemies of the American communists, Each anticommunist, then, had a different reason for despising communism and therefore for shunning communists. I have argued here that the forced association of private individuals with others who hold political views that those individuals deemed of-

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fensive undermines all of the values fostered by the free speech protection. Therefore, private shunning that is grounded in cognitive concerns falh within the scope of the First Amendment guarantee. 10 On a purely political level, one may of course reject the normative rationales of McCarthy era anticommunists for engaging in the shunning of American communists through the use of privately operated blacklists. For First Amendment purposes, however, the question is not whether one agrees or disagrees with the private actor's rationale for shunning those who hold a particular political viewpoint, any more than it is when one determines the constitutional protection for a private actor's affirmative expression of her political positions. 11 Today, private actors might well choose to shun others for the holding of a variety of viewpoints that some might deem offensive, including racism, anti-Semitism, and jingoism. But if the guarantee of free expression is not to degenerate into little more than a tool of political vengeance, First Amendment doctrine cannot be shaped simply to satisfy the strategic needs of a particular political group. By structuring the First Amendment right of nonassociation without regard to such narrowly based political considerations, one should be able to understand how that right applies to the anticommunists of the McCarthy era as much as it applies today to those private actors who seek to shun or boycott racists, gay bashers, or anti-Semites. Many historians of the McCarthy era are likely to find the positions taken in these pages to be problematic. By freely condemning the espionage activities of American communists revealed in the Venona documents, defending privately operated blacklists as an exercise of the First Amendment right of nonassociation, and acknowledging the authority of government to exclude communists from educational positions under certain circumstances, I will no doubt incur the ire of those historians who have long viewed the McCarthy era as nothing more than an ideological witch-hunt. Yet by drawing a clear constitutional line between governmental punishment for espionage on the one hand and unlawful advocacy on the other, unhesitatingly condemning the efforts of Senator McCarthy and his supporters and urging the unconstitutionality of the governmental deprivation of certain jobs or both the House Committee on Un-American Actiivities benefits from American communists, I will likely displease many conservative scholars. 12 But in each of the First Amendment issues to which the activities of the McCarthy era gives rise, it is my view that the social, political, and constitutional questions are generally far more complex than either side of the political spectrum has acknowledged. They therefore do not lend themselves to resolution by reflexive reference to liberal or conservative ideologies. In measuring the events of the McCarthy era against the standards of American political and constitutional theory, it is a scalpel, rather than a sledgehammer, that is required.

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The modern historians who have done such pioneering work in this area-particularly Haynes and Klehr on one side and Schrecker on the other-have effectively laid the groundwork for the next step in the analytical inquiry. That inquiry is a focus on the implications of constitutional theory for one's judgment of the McCarthy era in light of the important revelations made by historians in the 1990s. It is just such an inquiry I have attempted in this book. Although First Amendment theory has much to contribute to an understanding of the McCarthy era, the reverse is also true. The postVenona McCarthy era may serve as a type of constitutional laboratory for the study of the theory of free expression, and in this book I have sought to do just that. The study of the place of the McCarthy era within the flow of American history, for example, provides an opportunity to consider the role of free expression as a means of combating the growth of so-called pathological periods. 13 The study of the espionage described in the Venona documents and the McCarthy-era prosecutions of American communist leaders enables us to reconsider and reshape the structure of the First Amendment's protection of unlawful advocacy.l 4 Reexamination of the House On-American Activities Committee and the Hollywood blacklists leads to a new analytical framework for the scope of constitutional limits on legislative investigations 15 and the First Amendment right of nonassociation. 16 Exploration of the impact of the McCarthy era on public education gives rise to a new theory of the First Amendment's role in public educationY In a number of ways, the new insights of First Amendment theory that I put forward in these pages are as controversial as my revised assessments of the McCarthy era itself. However, the one aspect of the book that should be free from controversy is the importance of its scholarly endeavor. To date, relatively little legal scholarship has focused on the constitutional implications of the McCarthy era. Although several important articles appeared during the era itsel£18 and a small number of important later works commented on the constitutional implications of the era, 19 no legal scholarship has considered the constitutional implications of the post-Venona version of the McCarthy era. More importantly, at no point have constitutional scholars attempted to synthesize the precepts of the theory of free expression with the insights of modern historians. It is just such a synthesis that I have attempted here. The McCarthy era has spawned a rich body of historical scholarship, both before and after the dramatic revelations of the 1990s. It is time that a similarly substantial scholarly effort to study the constitutional implications of that era begins.

Notes

CHAPTER I

r. Although the label "McCarthy era" has been widely used to describe this period in American history (see, e.g., Ellen Schrecker, Many Are the Crimes: McCarthyism in America [Princeton ed., 1998]), in many ways, Senator McCarthy was relatively peripheral to the era. For one thing, the period of postwar suppression of American communists both preceded and followed the senator's relatively brief appearance in the limelight. Moreover, the senator played only a limited role in actually ferreting out communist activity within the nation's borders, despite the widespread attention he received and harm he caused. For a more detailed discussion of Senator McCarthy's role in the era, see Chapter 2, infra. 2. Harvey Klehr, John Earl Haynes, & Kyrill M. Anderson, The Soviet World of American Communism r (1998). 3· See, e.g., Harvey Klehr, John Earl Haynes, & Fridrikh Igorevich Firsov, The Secret World of American Communism 17 (1995) (footnote omitted): "The revisionist view, the dominant perspective among academic historians for the past twenty years, holds that the American communist movement was a normal, albeit radical, political participant in American democracy." See also sources cited in id. at 17, n. 9; Jacob Weisberg, Cold War Without End, N.Y. Times Magazine, Nov. 28, 1999. Much scholarly work has been written about the American communist movement. "In 1987 an annotated guide listed more than two thousand books, articles and dissertations on the topic. If a new edition were prepared today, it would contain three times as many citations. Sometimes it seems as if never have so many written so much about so few." John Earl Haynes & Harvey Klehr, In Denial: Historians, Communism and Espionage 29 (2003). 4· Klehr, Haynes, & Anderson, supra note 2 at 3· 5· "From being villains, Communists and their allies [were] recast as martyrs and victims." Id. at 3. 6. Haynes & Klehr, supra note 3, at 3 r.

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7. Id. at 3 3. Haynes and Klehr suggest that "Many of these 'new historians of American communism' ... tied their research to their own radical sympathies, openly acknowledging that it was driven in part by a desire to validate their political needs. If the earlier generation of historians of American communism had written about a god that failed, these new revisionists, with some prominent exceptions, were searching for a past that would justify their radical commitments and offer lessons for continuing the struggle." Id. at 3 5. 8. For an excellent analysis of the nature of the anticommunist movement, see Richard Gid Powers, Not Without Honor (1998). See also the discussion of the issue in Chapter 5, infra. 9· See, e.g., David Caute, The Great Fear: The Anti-Communist Purge Under Truman and Eisenhower 54 (1978). ro. See, e.g., John Earl Haynes & Harvey Klehr, Venona: Decoding Soviet Espionage in America 17 (1999): "By the 198os many commentators, and perhaps most academic historians, had concluded that Soviet espionage had been minor, that few American Communists had assisted the Soviets, and that no high officials had betrayed the United States .... As for American Communists, they were widely portrayed as having no connection with espionage .... Communists were depicted as innocent victims of an irrational and oppressive American government." For works taking this position, see generally Richard M. Fried, Nightmare in Red: The McCarthy Era in Perspective (1990); Caute, supra note 9· rr. Klehr, Haynes, & Firsov, supra note 3, at r8. 12. The Comintern "supervised Communist parties the world over from 1919 until Joseph Stalin dissolved it in 1943." Haynes & Klehr, supra note ro, at r. 13. Id. q. Klehr, Haynes, & Anderson, supra note 2, at 4 (emphasis in original). 15. Haynes & Klehr, supra note ro, at 9· r6. Id. "The deciphered cables of the Venona Project identify 349 citizens, immigrants and permanent residents of the United States who had had a covert relationship with soviet intelligence traffic." Id. Moreover, because "American cryptanalysts in the Venona Project deciphered only a fraction of the Soviet intelligence traffic ... it was only logical to conclude that many additional agents were discussed in the thousands of unread messages." Id. For a more detailed examination of the Venona documents and their implications, see Chapter 2, infra. 17. Many of the leading works were coauthored by Haynes & Klehr. See sources cited in notes 2, 3, ro, supra. A small sample of others works includes Ted Morgan, Reds (2003); Herbert Romerstein & Eric Breindel, The Venona Secrets: Exposing Soviet Espionage and America's Traitors (2ooo); Nigel West, Venona: The Greatest Secret of the Cold War (1999); Powers, supra note 8; Sam Tanenhaus, Whitaker Chembers (1997); Lisle A. Rose, The Cold War Comes to Main Street: America in 1950 (1999); Hilton Kramer, The Twilight of the

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Intellectuals: Culture and Politics in the Era of the Cold War (1999); Allen Weinstein & Alexander Vassilev, The Haunted Wood (1999); Arthur Herman, Joe McCarthy (2ooo). 18. The most critical are those by Haynes and Klehr, Kramer, and Herman. 19. See generally Schrecker, supra note r. 20. Id. at 131. 21. Id. at 179. 22. Id. at 18r. 23. Id. (footnote omitted). 24. Id. 25. See id. at 179. ("It is clear that some genuinely damaging espionage did take place.") 26. See Weisberg, supra note 3, at II6, 121, noting that on the basis of the Venona revelations "some on the left have conceded at least partial defeat." In particular, Weisberg points to Walter and Miram Schneir and Maurice Isserman, who have modified their views somewhat. 27. See id. at 121 ("On the basis of evidence culled from the Venona files, conservatives have been busy declaring victory over the domestic left"); id. at 156 (noting that "the revisionist view of Communism is losing scholarly support," even if "it is still strong in the popular culture"). 28. Haynes & Klehr, supra note 3, at 224 (emphasis in original). 29. For a thorough exploration of the espionage revealed in the Venona documents, See Haynes & Klehr, supra note 10, at 93-207. 30. See Weisberg, supra note 2, at 122-23; for an excellent description of the views of those who question the validity of the Venona documents, see Haynes & Klehr, supra note 3, at 89-101. For a detailed discussion of the issue, see Chapter 4, infra. 3 r. Those prosecuted for espionage or espionage-related activities included, among others, Judith Coplon, Alger Hiss, and Julius and Ethel Rosenberg. See Haynes & Klehr, supra note 10, at 158-6o (Coplon); at 15 5-73 (Hiss); at 3 10-II (Rosenbergs). 32. See generally Chapters 2 and 4, infra. 33· Haynes & Klehr, supra note 10, at 336. 34· See id. at 18 ("The information that these messages reveal substantially revises the basis for understanding the early history of the Cold War and of America's concern with Soviet espionage and Communist subversion"). 35· By "narrowest and most direct form," I mean the knowing and clandestine transfer of information to agents of a foreign power. Conceivably, the more widespread public revelation of previously secret information could in a sense be characterized as a type of espionage, but in such a case there may well be important First Amendment implications of such a characterization. 36. The issue is examined in detail in Chapter 4, infra.

Notes 37· See id. 38. See id.; David A. Strauss, Persuasion, Autonomy, and Freedom of ExjJression, 91 Colum. L. Rev. 334, 334 (1991) ("The government may not sup-

press speech on the grounds that it is too persuasive. Except, perhaps, in extraordinary circumstances, the government may not restrict speech because it fears, however justifiably, that the speech will persuade those who hear it to do something of which the government disapproves ... [B]ad consequences that come about because the speech persuades people to do certain things cannot justify suppression"). 39· See generally Chapter 4, infra. 40. See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam); Chapter 4, infra. 41. See Chapter 4, infra. 42. See id. 43· 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 44· See, e.g., Frederick Schauer, Free Speech: A Philosophical Enquiry 19-29 (1982) (challenging reasoning of the marketplace of ideas rationale for free spe~~ch protection); C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964 (1978) (same). 45· See, e.g., Alexander Meiklejohn, Political Freedom (1960). 46. Liberal democratic theory posits that "individual consent ... [is] vital to the whole idea of political activity." Ian Shapiro, The Evolution of Rights in Liberal Theory I 275 (1986). Liberal democracy has been rationalized on the grounds that "without an opportunity to participate in the regulation of affairs in which one has an interest, it is hard to discover one's own needs and wants, arrive at tried-and-tested judgments and develop mental excellence of an intellectual, practical and moral kind." David Held, Models of Democracy 89 (1987). See also Meiklejohn, supra note 45, at 9 (noting that in a democracy, "[g]overnments ... derive their just powers from the consent of the governed. If that consent be lacking, governments have no just powers"); J. Roland Pennock, Democratic Political Theory 3 IO (1979) ("Elections are thought to constitute the great sanction for assuring representative behavior"). 47· See U.S. Const. Art. V (providing for amendment through resort to specified supermajoritarian process). 48. See, e.g., Schacht v. United States, 398 U.S. 58 (1970); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) ("There is no such thing as a false ide2."). 49· See Klehr, Haynes, & Anderson, supra note 2. 5