The Logic of Persecution: Free Expression and the McCarthy Era

Vol. 16 No.1 (January 2006), pp.92-98

THE LOGIC OF PERSECUTION: FREE EXPRESSION AND THE McCARTHY ERA, by Martin H. Redish. Stanford CA: Stanford University Press, 2005. 320pp. Cloth. $55.00. ISBN: 0-8047-4804-7.

Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College. Strauber [at] Grinnell.edu.

THE LOGIC OF PERSECUTION, by Martin Redish is a well-crafted and consistently engrossing attempt to reconfigure our understanding of “McCarthy era” constitutional history (the late 1940s-50’s public and private efforts to counteract and repress perceived threats to national security from domestic and Soviet communists) in light of, and in relation to, interpretations of various facets of First Amendment jurisprudence. Its synergistic and pragmatic use of historical materials, formalist conceptions and categories, facets of conventional and non-conventional First Amendment theory and doctrinal analysis, and democratic political theory (all of this familiar to political scientists, if not legal scholars, as a meld of legal and political model materials) make for arguments and conclusions which are, in and of themselves, and in light of current political and legal events, sufficiently serious and purposeful to be worthy of our careful attention and critical assessment.

The first chapter introduces Redish’s historical and formalistic approach to McCarthy era anti-communist activities (Joseph McCarthy himself has virtually no role in the analysis) which, combined with free speech theory, constitutes the general framework for the book as a whole. Via the so-called Comintern and Verona documents, Redish seeks to transcend what he locates as the typical bifurcated, right-left ideological debates about the McCarthy era. These documents purportedly confirm the extent to which there were, in fact, sustained (covert) communist intentions and activities potentially adverse to the nation’s security. Redish contends that understanding these documents requires an approach which goes beyond typical bifurcated ideological thinking—wherein virtually all counter-communist activities are either warranted or repressive.

As I read it, Redish’s free speech theory has two fundamental premises. The first evolves from the conventional distinction between protected speech and unprotected action (even if speech-correlated): speech that coaches or supports the violent overthrow of the government may be protected, versus espionage activities, which are not protected. The second premise is that the preeminent reason that justifies protecting political speech is to guarantee a political process that provides for “self-rule, popular sovereignty, and public accountability” (p.9). Working out from these premises, Redish’s synergistic use of his argumentative materials leads repeatedly to finding that “constitutional reality is far more complex than either the standard liberal or conservative positions on the issues might suggest” (p.12). [*93] Indeed, the complexity of the realities of First Amendment considerations is the pragmatic motif of Redish’s treatment of McCarthy era counter-communist activities through the chapters that follow.

Chapter Two works out from the two premises to construct an historical-formalistic characterization of “the legal framework established by the anticommunist network to fight communism and communists” (p.25). This characterization first focuses on what is identified as the 1950s “right-privilege” distinction: First Amendment concerns are high when government subjects citizens to criminal penalties following speech and activities, but is abated when governmental policies restrict benefits (privileges), even in exchange for trading off a right. Pointing out that such trade-offs are now forbidden by the “unconstitutional conditions” doctrine, Redish then draws a set of categorical distinctions to answer questions arising when benefits and deprivations violate the First Amendment. From there, Redish evaluates whether or not, or to what extent, there are serious First Amendment problems with McCarthy era policies, such as denying communists positions in government; preventing communists from leadership positions in labor unions, excluding communists from teaching in public schools, and creating loyalty security programs.

Redish continues with categorical distinctions to provide a conceptual “typography” for framing a number of other McCarthy era laws and policies. These include the Smith and McCarran Acts (forbidding advocacy or organizing for the sake of forceful overthrow of the government and requiring communist organizations to register with the government respectively); House Un-American Activities Committee (HUAC) investigations of supposed domestic and foreign un-American activities, subversion, and propaganda, as well as associated constitutional questions about the scope of HUAC’s authority; and private shunning such as boycotts and blacklists. In light of historical evidence documenting communist espionage during the period and his categorical typography, Redish proposes a tripartite hierarchy for situating the constitutionality of anti-communist policies: clearly constitutional, clearly unconstitutional, and “a third category. . . [that] is far more ambiguous and is therefore deserving of considerably more intense constitutional analysis” (p.45). This third place in the hierarchy is where THE LOGIC OF PERSECUTION is meant to make a contribution to McCarthy era constitutional history, and free speech theory more generally considered.

The emphasis in Chapter Three is on free speech theory. Its main point is to rejoinder legal scholar Vincent Blasi’s “pathological perspective” on First Amendment. As Redish portrays it, Blasi contends that First Amendment jurisprudence in “ordinary times” should be formulated so that it will compensate for efforts to repress speech and expression in putatively extra-ordinary times. Redish presents historical, logical, theoretical, practical, and [*94] normative reasons for rejecting a pathological perspective. Accordingly, using the McCarthy era as a paradigm, he defends a “broad-based value analysis” (p.60) of the First Amendment, one that expands on the speech theory premise about political processes to include “the positive role of the free speech guarantee as a catalyst in tapping and developing the uniquely creative and intellectual capacities of the individual” (p.61). (Political Scientists might take some satisfaction from Redish’s point that theory, categories, or doctrines do not say much about whether a Court can be efficacious in protecting First Amendment concerns in times of duress.)

Chapter Four may be the key chapter. It addresses facets of constitutional questions about when advocacy of unlawful conduct falls under the umbrella of First Amendment protection. Focusing on the Comintern and Verona documents, pre-Cold War politics, and the reasoning in DENNIS v. UNITED STATES (sustaining convictions under the Smith Act), Redish concludes that: 1) the ideological right is correct about the very real threat posed by communists during the McCarthy era; 2) the ideological left is correct that the government engaged in constitutionally unwarranted activities; and 3) past and current First Amendment theory and doctrines on unlawful adequacy fail to manage the competing interests manifest in the positions of the right and the left. To compensate for that, Redish advances his candidate to “accommodate all of the vital competing interests implicated in the regulation of unlawful advocacy” (p.131), what he calls the “selective categorization model” (p.67).

This model rejects a mono-theoretical approach to First Amendment doctrine and would have adjudicators choose one of three current conventional First Amendment doctrinal models (referred to as definitional, categorical, or speech-protective balancing), “on the basis of a pragmatic attempt to tailor First Amendment interpretation to the unique needs of specific situations” (p.67). Redish’s analysis of the conventional models (as well as of his own) leads him to say that selective categorization will not escape altogether the “intellectual confusion” (p.68) and potential case-by-case manipulations (p.69) that attend current mono-theoretical approaches to managing competing interests in First Amendment adjudication. Hence, the primary virtue he claims for selective categorization is that it requires “defined conceptual marking points that establish the categorical distinctions to be applied” (p.69). Once in place, it would offer the best chance that there could be “a large speed bump in the way of . . . suppression” (p.123) associated with the excesses of McCarthy era policies.

At a higher level of generality, Redish also explains what he thinks are the boundaries of limits on the protection of unlawful advocacy by constructing a novel four-fold categorization for judicial fact finding related to advocacy and unlawful conduct—”confined” unlawful advocacy, “unconfined unlawful advocacy, speech-acts, and informational speech.” Here again, Redish claims that the primary virtue of his approach is its commonsense [*95] appreciation of the reality of competing interests when it comes to advocacy and unlawful conduct. He also defends his four-fold categorization as the best, pragmatic response to the enigmatic nature of the text of the Constitution and history of the First Amendment, and frankly speaks to the strengths and weaknesses of his own approach. Once more, Redish makes the point that “no constitutional doctrine or precept can restrain a Court and a nation hell-bent on suppression” (p.123).

Hell-bent suppression is the topic of Chapter Five. Redish considers both HUAC investigations of communism in Hollywood alongside private efforts, such as blacklisting, to counter perceived communists threats in the motion picture industry. The principal argumentative chord that Redish strikes here combines notes from free speech theory with those from rights of association and non-association. One note draws on a comparison and contrast between the logic of BOY SCOUTS OF AMERICA v. DALE (recognizing a First Amendment right of association that legitimized the BSA to expel a homosexual scout leader) and the shunning (e.g., private blacklists) of communists, whether subsequent to or independent of HUAC investigations. Another note, put together with the first, involves a critical analysis of the theoretical and doctrinal weaknesses of DALE, leading to a third note which Redish intends to be a novel contribution to free speech theory.

This note involves “the affirmative right of association,” put together with a “right of nonassociation” and “the line of cases recognizing a First Amendment right not to be forced to speak” (p.134). Redish’s composition leads him to defend yet another categorical distinction, this one between protected active and passive rights to refuse to associate. To illustrate, DALE rights cover the (active) right to refuse to associate by a group with a specific political or social purpose it espouses. As I understand it, Redish would expand DALE rights to include a (passive) association right to refuse to associate and “not to speak” with those persons that a group finds offensive, independent of the political or social purposes of the group (e.g., an orchestra refusing to play with a racist, or anti-Semite.)

This proposed expanded DALE doctrine would legitimize as First Amendment protected behavior the McCarthy era shunning of communists by those who found communists offensive (p.134). Granted that legitimization, Redish ventures to say that, HUAC’s actual practices aside, governmental activities akin to them, properly formulated and executed to expose private political affiliations of citizens “facilitating the exercise of nonassociational First Amendment rights” (p.135), may be justifiable. Redish takes care to articulate how and why any such exercise of power in the name of nonassociational rights (and rights not to be forced to speak) also conflicts with conventional First Amendment rights of privacy. To manage these conflicts he builds on the speech/action distinction to frame a tri-partite categorization of forms of shunning behavior based on “the reason to shun” (the cognitive variable) and “the nature of the personal [*96] interaction being shunned” (the non-cognitive variable) (p.149).

I excuse myself from a summary of the formalistic arguments, boundary drawing, and findings about free speech, privacy, and governmental power that ensue. I will, however, risk the distortions that attend summing up things where the devils are in the details. The bottom line is that tri-partite categorization formulation is designed to bring to the fore the extent to which some shunning behaviors would be, when sorted out by tripartite categorization, more ambiguous than convention would expect, and perhaps produce First Amendment close calls! That said, the chapter ends with the admission and admonition that the ambiguities and complexities arising from this categorical sorting out may have “created more problems than. . . [they] solved” (p.171). To the extent that that is so, Redish suggests that these lessons in ambiguity and complexity can be constructive, in and of themselves.

The final substantive Chapter Six covers free speech theory and public education. The conceptual key to Redish’s approach to McCarthy era governmental policies regarding public education (e.g., investigations into communist influences, dismissing known communist teachers, and loyalty oaths) is a “virtually intractable dilemma” (p.178). “To the extent a community uses its education system. . . as. . . a. . . 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” (p.18). Redish critically reviews three doctrinal models regarding value inculcation and free thought, and finds them inadequate in the face of this dilemma because they “give rise to potentially chaotic and harmful judicial interference in the educational process, or both” (p.205).

Redish’s remedy is the “anti-indoctrination model.” It is constructed to work within the paradox by line-drawing strategies reflecting three central principles: 1) judicial recognition that there is no such thing as a false idea (p.186), 2) judicial deference to pedagogical discretion to make curricular choices (pp.190, 206), and 3) due judicial vigilance for unwarranted policies “to influence the future political, social, or economic views of. . . . students” not related to curricular discretion (p.206). What holds these three [*97] principles together and drives line drawing between legitimate and illegitimate public policies is the macro-principle that the State (p.190) and local educational authorities have “enormous unchecked discretion to transmit values through the traditional curriculum” (p.210). Not surprisingly then, Redish concludes that McCarthy era investigations of teachers for their political (communist) convictions are not necessarily illegitimate, and refusing to hire or excluding teachers with beliefs that conflict with school authority values is permissible (solely though in connection with courses where teacher convictions contradict the values that school authorities are trying to teach). Moreover, requiring loyalty oaths could be legitimate in terms of the three principles, but is not legitimate as implemented during the McCarthy era (conventional law on loyalty oaths having it about right).

Redish concludes the chapter by trying his hand at extrapolating from the McCarthy era analysis to contemporary issues, such as school bulletin boards, textbook selections, and then doubling-back to the McCarthy era to address policies controlling teachers’ political activities. Substance aside, what these extrapolations and the previous analysis add up to methodologically is that there just does not appear to be a “cure” (p.218) for the vexing constitutional issues of public education and free speech. Consequently, the final pitch that Redish makes for adjudication along the lines of the anti-indoctrination model is that it would be better than any other approach at uncovering and exposing the dilemmas involved, as well as, at the margins, providing some (small) greater possibility of shining a light on illegitimate exercises of school discretion.

The last chapter is terse. It emphasizes a defense of the historical-formalist approach to the McCarthy era and its implications for innovative conceptions of unlawful advocacy, the rights of nonassociation, and public education. Beyond that, the conclusion crystallized for me what were otherwise sporadic, but recurring, associations I had involving the text and recent political and constitutional events and issues—e.g., the Patriot Act trial of Professor Sami Al-Arian in Florida; President Bush’s defense of Executive Power to use the National Security Agency to intercept domestic private communications without a warrant; the broader issue of the legitimate reach of Executive power to restrict civil liberties in “wartime;” and the Dover Area School District (Pa.) controversy and trial over the introduction of “intelligent design” into the school curriculum.

Likeminded scholars and graduate students who have a taste for the argumentative style of subtle (sometimes knotty) formalistic distinctions mixed with political model considerations, and who can tolerate the potential for frustrating some of their own ideological and doctrinal convictions, might enjoy trying their hands at extrapolating from Redish’s McCarthy era analysis to like contemporary events and issues. (As an aside, this book is well crafted and lucid, but it is also formalistic—so, I suspect that undergraduates will need some guidance to navigate the categorical channels of Redish’s argumentative style.)

In fairness to the author, I admit that I found it hard to read this book solely on its own terms, without recent events in mind. Those readers with greater self-discipline will take on the task of evaluating what Redish has to say in light of the political science, legal, and history literatures on free speech in times of political unrest and crisis. And readers of a First Amendment jurisprudential will test the strengths and weaknesses of Redish’s “pragmatic formalism” (Redish 1995, at 9) and its accommodations of categorical imperatives with consequentialist considerations. [*98]

To sum it up, the preface sets out the three goals of this book: to re-conceptualize the McCarthy era from the perspective of free speech theory; to use the McCarthy era as a paradigm to reconsider free speech theory in historical-formalistic terms; and to have historical-formalism inform both the study of constitutional history and law (pp.ix-x). The book delivers on these three goals, and does so in an intellectually delightful and practiced way.

REFERENCES:

Blasi, Vincent. 1985. “The Pathological Perspective and the First Amendment.” 85 COLUMBIA LAW REVIEW 449-514.

Gillman, Howard. 1996. Book Review: The Constitution As Political Structure. 544 ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 226.

Redish, Martin. 1995. THE CONSTITUTION AS POLITICAL STRUCTURE. New York and Oxford. Oxford University Press.

CASE REFERENCES:

BOY SCOUTS OF AMERICA v. DALE, 530 US 640 (2000).

DENNIS v. UNITED STATES, 341 US 494 (1951).

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