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
Page 80 follows:
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
Page 81 follows:
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