Vol. 3, No. 7 (July, 1993), pp. 79-81.

RED SCARE IN COURT: NEW YORK VERSUS THE INTERNATIONAL WORKERS ORDER by Arthur J. Sabin. Philadelphia: University of Pennsylvania Press, 1993. 372 pp. $32.95.

Reviewed by Dean Alfange, Jr., Department of Political Science, University of Massachusetts at Amherst.

At certain points in my courses, I recurringly inflict on my classes a weak attempt at humor. At best, these efforts elicit strained smiles from those students most desirous of appearing polite, but somehow I am not deterred from repeating them the next time I teach the course. One of these efforts occurs when, after we have noted that the free speech claims uniformly rejected by the Supreme Court in the years immediately following World War I were made by pacifists, socialists, anarchists, or others with revolutionary inclinations, we arrive at the 1922 case of PRUDENTIAL INSURANCE CO. V. CHEEK, in which the free speech claim (also rejected by the court but apparently supported by its three most conservative members) is made by a company seeking not to be compelled to report on the quality of service of its discharged employees. At this point I say, looking vainly around the room for some appreciation of the joke, that one thing that can be said with certainty is that Prudential is not a Communist organization, the implication being that no organization with the wealth-accumulating capacity of an insurance company could conceivably have Communist leanings. Arthur Sabin's RED SCARE IN COURT is a reminder that my remark not only fails at humor, but also conveys an inaccurate implication.

The International Workers Order, a fraternal benefit insurance organization, was established in 1930 under Communist leadership, splitting away from a fraternal organization of Jewish workers that was not sufficiently militant for Communist tastes. The IWO offered social, cultural, and educational support for workers -- particularly those from ethnic, religious, or racial minorities -- but its principal service was the provision of low-cost life and health insurance. Blacks were offered insurance at the same rates as whites, and no workers were excluded because of the hazards of their occupations. The attractiveness of this program to low-income families in the depression years was great, and the IWO prospered. By 1950, after twenty years of operation, its assets had grown to over $6 million, 97% of which was in cash or government bonds. The founders and leaders of the IWO were almost all members of the Communist Party, and their aspiration was to use the organization to recruit individuals into the Party, but it was estimated that only a small percentage (perhaps 3%) of the IWO membership, which rose to a high of almost 200,000 in 1946, were Communists.

As a provider of insurance, the IWO was licensed by the state of New York from its inception. Because it was conservatively managed and financially solvent, with liquid assets and surpluses substantially in excess of what was required by law, it easily passed all state audit reviews until it appeared on the Attorney General's list of subversive organizations in November, 1947, at which point New York concluded that it could not continue to shelter an organization -- even an insurance association -- that was tied to the Communist Party. In January, 1950, an examiner for the state Insurance Department (acting, he claimed, entirely on his own initiative) recommended that, although the IWO was financially sound, it should be liquidated and its assets taken over by the state because it had engaged in political activities -- which insurance providers were not authorized to do -- and because those activities were a "hazard" to the policyholders, within the meaning of state insurance law, because it exposed them to charges of disloyalty. Governor Thomas E. Dewey promptly appointed a Special Assistant Attorney General to push the recommendation of the examiner through the administrative processes of the Insurance Department and the courts. Not surprisingly, since the word "Communist" had a virtually magical legal effect at that time, the recommendation for liquidation was approved by the Superintendent of Insurance and by every participating state judge at three levels of trial and appeal even though it required interpretations of state insurance law that were wholly unprecedented

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at the time and have never been employed since. The United States Supreme Court denied certiorari, with only Justices Black and Douglas dissenting. The IWO ceased to exist in December, 1953.

Professor Sabin's book is a recounting, in minute detail, of the four-year legal struggle from the issuance of the examiner's report to the demise of the IWO. Its principal virtue and its principal flaw are identical. Because it relentlessly describes the events at every step in the process, it is a marvelous reference work for anyone interested in studying that small but significant incident in Cold War history. Sabin has combed the archives of the IWO and the extensive files of the state's special counsel, as well as the voluminous trial record and the appellate record. The trial, including preliminary hearings, lasted four months and created a record of over 4,000 pages, and the bulk of the book is devoted to summarizing all of the trial events. But the virtue of exhaustive detail is also the vice of overkill for the general reader. And it is certainly the general reader that Professor Sabin perceives as his audience. Even as his narrative unfolds painfully slowly, he frequently stops it dead to provide explanations of elementary points of law. Thus, before we are given more information than we probably want to know about the arguments in the briefs of counsel, we are subjected to an explanation of what a brief is.

Nevertheless, in spite of, or perhaps because of, the enormous stockpiling of detail, certain points are brought sharply home. First and foremost, Professor Sabin wants us to see, and succeeds in making abundantly clear, that the law, in this as in so many instances in the legal history of the Cold War period of the 1940s and 1950s, was being bent to serve political purposes, not by villains, but by decent and honorable men who were too consumed by fear of subversion (or fear of the consequences of not appearing to fear subversion) to do otherwise. Just as Chief Judge Learned Hand and Chief Justice Fred Vinson manipulated the "clear and present danger" test of Oliver Wendell Holmes to justify the suppression of speech that urged the "ultimate" evil of violent overthrow of government even where the danger was obscure and remote, the courts were willing to concede that the state possessed authority to liquidate a financially solvent insurance institution whose officers held political views that they feared, and to define the statutory term "hazard" to include not only the hazard of insolvency, but also the political hazard of subversion. Not a single precedent supported this use of state power, but the courts eagerly embraced the claims of the state's counsel. The state's highest court balked at the broad definition of "hazard," but nevertheless sustained the liquidation of the IWO on the ground that an insurer is without authority to engage in politics, thus begging the question of why, if this is the case, complete liquidation is a more appropriate remedy than a simple order to desist from further political activity. Truly incredibly, the Insurance Department argued, and the courts agreed, that it was the very financial strength of the IWO that made its liquidation essential. For, if its assets were in cash and government bonds, its officers could abscond with the funds to finance revolutionary action, and, as dedicated Communists, would surely do so if it were ordered by the Kremlin.

Second, the trial, before New York State Supreme Court Judge Henry Clay Greenberg, was, in particular, a charade. Looking back, it is clear that there was never a chance, once it was established that the leadership of the IWO consisted of members of the Communist Party, that there would be a ruling in its favor, whatever the law may provide. Professor Sabin is at great pains to point out how Judge Greenberg declined to rule on defense motions that, if ruled on one way or the other, might have aborted the trial. One can only surmise that the judge desperately wanted the opportunity to preside over a prominent Communist trial. His friend, Judge Harold Medina, as Sabin notes, had become a judicial celebrity after presiding at the federal Smith Act trials of the top leaders of the Communist Party in 1949, and Medina was elevated to the United States Court of Appeals in 1951. Sabin observes that members of Judge Greenberg's family described him as an ambitious judge who badly

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wanted to be promoted to an appellate court. The IWO case must have seemed an excellent vehicle for furthering these ambitions, but the opportunity would have been squandered by a ruling that Communist Party members could retain control of an institution with assets as large as those of the IWO.

Third, Professor Sabin's attention to the details of the trial testimony recalls the role of the paid government witness in Communist cases. Drawing on the concerns about this practice expressed by Richard Rovere and Herbert Packer, from whom he quotes extensively, Sabin delineates the enormous opportunities for abuse inherent in a system in which former members of the Communist Party -- frequently men or women whose personal histories suggested questionable moral standards and mental instability -- were placed on the per diem payroll of the Department of Justice and sent to testify for the government at trials or hearings involving persons alleged to be Communists or at congressional investigations into subversive activity, in order to explain the operations of the Communist Party or to identify certain individuals as having been members of the Party. Because these witnesses could not expect to remain in the pay of the government or to retain their celebrity status if they did not testify the way they were expected to, they invariably seemed to say whatever was appropriate to support the government's case. There were several such witnesses in the IWO trial, and a large part of Sabin's book is given over to a close examination of their testimony, which was characterized by glaring inconsistencies and by apparently prodigious feats of memory that allowed individuals who could not muster any recollection of what had transpired at the trial on the preceding day to recall precisely events or conversations that supposedly had taken place years earlier. Yet, in this case as in many others of the period, such testimony, despite the fact that the witnesses' credibility would seem to have been destroyed on cross-examination, was uncritically accepted in all its particulars. Judge Greenberg made their testimony the basis for his findings of fact.

If Professor Sabin's pauses to explain legal terms or procedures disrupt the flow of his narrative, his pauses to recite the headlines in the New York daily papers while the trial was taking place are extremely effective in putting the case in its historical context and in preventing the reader from forgetting the national obsession with Communism that prevailed at the time and that, beyond doubt, determined the outcome of the case. Professor Sabin is wrong in identifying 1957 as the end of that era, the time when courts again proved ready to protect the rights of left-wing dissidents. To be sure, the United States Supreme Court, in important 1957 cases such as YATES V. UNITED STATES, WATKINS V. UNITED STATES, and SWEEZY V. NEW HAMPSHIRE, signalled a desire to accord Communists a measure of judicial protection, but the political reaction to those decisions was angry, and, from 1959 through 1961, the Court retreated to its earlier practice of sustaining the power of the federal and state governments to deal with alleged subversives in whatever way they chose. That period was marked by decisions such as SCALES V. UNITED STATES, BARENBLATT V. UNITED STATES, and UPHAUS V. WYMAN, but there were now four dissenters, with Warren and Brennan joining Black and Douglas. The judiciary's tolerance of anti-Communist zealotry did not end until 1962 when Arthur Goldberg replaced Felix Frankfurter to create a different majority and to mark the effective birth of the Warren Court. It was after 1962 that the nation discovered that the constitutional and legal rights even of Communists could be recognized without bringing about the collapse of American democracy.

But in telling the story of the legal destruction of the IWO, Arthur Sabin has provided a useful reminder of that shameful period in American constitutional and legal history when wholly irrational concerns for internal security drove all three branches of government to substitute the rule of fright for the rule of law. There can never be too many reminders of that period because each reminder helps to insure that such a time will never come again.


Copyright 1993