A RHETORICAL ANALYSIS OF THE PLEADING IN UNITED STATES v. DENNIS ET AL THESIS FOR THE DEGREE OF PH. D. MICHIGAN STATE UNIVERSITY THEODORE NOSS SMITH I 9 6 7 rum 0-169 \\\\\\\\\\\\I\\\\\\\\\\\\\\\\\\\\\\ i I This is to certify that the thesis entitled 'A Rhetorical Analysis of the Pleading in United States v. Dennis et a1 presented by Theodore Noss Smith has been accepted towards fulfillment of the requirements for Ph .D. degree in Speech A -. {7 fl ,2 /L~v’ [David C. Ralph Major professor Date December 15, 1967 -___________—._____.~___,___._______ _ This study' Movernment's afirthe Smith . @fmeCoumunist Enuytoteach I3? government 1 The length unedquestione 73! issues inher litivitm of U muons of the Emchlfiking. 1 1' What a] 1 What a: Mainta- 3' What W; 8nd ad‘ no. pr! 4‘ what r1 ‘0 use ABSTRACT A.RHETORICAL ANALYSIS OF THE PLEADING IN UNITED STATES V. DENNIS ET AL by Theodore N. Smith This study analyzes rhetorically the pleading heard during the Government's first prosecution of the American Communist Party under the Smith Act in 1949. Eleven members of the National Board of the Communist Party were indicted in 1948 and charged with con— spiracy to teach and advocate the duty or necessity of overthrowing any government in the United States. The length and bitterness of this trial, which ran nine months, raised questions concerning the nature of Communist forensic speaking. The issues inherent in the case, especially the issue of whether the activities of the Party constituted advocacy or discussion, made the opinions of the appellate courts highly significant to students of speechmaking. The study subsequently postulates four questions: 1. What arguments and evidence did the government put forward in maintaining the contentions in the indictment? 2. What arguments and evidence did the defense put forward in maintaining their position? 3. What was the rhetorical nature of the conspiracy to teach and advocate which the trial jury found here and which is now prohibited? 4, What rhetorical criteria did the appellate courts appear to use in upholding this conviction? Chapter 01 grior to United tactical praC' Ere: presents I Ester Four pre IEIIIIai‘ analy: ration speed Item of que! 13"“ 0f the Previous 1 lilited by the ‘ :m' The Gitl: m“? test, Elm-mu, A ‘érhetorical I The Cent“ M . “End "1 the Theodore N. Smith Organisation and Method Chapter One reviews judicial decisions in important speech cases prior to United States v. Dennis et al. Chapter Two is a study of the rhetorical practices of the Communist Party of the Unitedetates. ”Chapter Three presents an analysis of the seven Opening speeches in the Dennis trial. Chapter Four presents an analysis of the evidence and testimony presented a similar analysis of the defense case. Chapter Six is an analysis of the summation speeches. Chapter Seven analyzes the appellate court decisions in terms of questions three and four above. Chapter Eight states conclusions in terms of the four questions originally posed. Conclusions Previous to the Dennis case, the American orator's freedom was limited by the clear and present danger rule enunciated in the Schenck case. The Gitlow decision prohibited the application of a remote bad- tendency test. The Near decision prohibited previous restraint of publication. A four—level—communication model is developed to represent the rhetorical activities of the Party. The central issue became the intent of the defendants, which was to be found in the true or intended meaning of Marxist-Leninist literature. Here, the testimony of the government's witness in chief, Louis Budenz, a former Party official, became crucial: He testified to the facts of the 1945 reformulation of the Party and to the communist meaning of the ‘basic Marxist-Leniuist literature. The defense argued that their many other activities in the political field proved that they had not advocated force and violence. Their efforts to get this political writing and activity admitted as evidence led to much angry colloquy with the court. The rhetorical styI he clm antag The appel seed to find, econspiracy to féhpiracy incl ”free discussio We Jurists ‘ d the degree The reaul 2‘Slith Act a: mompires s; Theodore N. Smith rhetorical style of the defense was featured by logical reificstion and the class antagonism and invective of their faith. The appellate decisions, in upholding the conviction of the defendants, seemed to find, as had been hypothesized, a new type of criminal conspiracy, a conspiracy to organize rhetorical activities. Rhetorical features of the conspiracy included the use of Aesopian language and the use of sterile "free discussion" periods. The principal feature of the conspiracy found by the jurists was the organization of the Party in a monolithic structure and the degree of discipline inherent in it. The result of the decision was to confirm the constitutionality of the Smith Act and to establish the rule that the advocate will be punished who conspires with others to teach and advocate overthrow of government, or to organise a society of persons for that purpose. In A RHETORICAL ANALYSIS OF THE PLEADING IN UNITED STATES v. DENNIS ET AL By Theodore N. Smith A THESIS Submitted to Michigan State University In partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Department of Speech and Theatre 1967 e; Lt ~72 to? 5’3 b'ég COpyright by THEODORE NOSS SMITH I967 Acknowledgments The writer is indebted to the infinite patience of Professors Kenneth Hance, Gordon Thomas, and Frederick Alexander of the Department of Speech and Professor Gilman Ostrander of the Department of History. In addition to directing the study, Professor David Ralph supplied indispensable measures of humor and hospitality. ur. Louis F. McCabe, of Philadelphia, Pennsylvania, a member of defense counsel in the Dennis case, lent the writer his personal copy of the complete trial record. Mr. George W. Crockett, Jr., of Detroit, Michigan, also a member of defense counsel, provided back- ground material and thoughtful comment. A special debt is owed to my wife Sue and my sons Linden and George, for having lived so long with "Dennis et a1." T.N.S. 1907 TABLE OF CONTENTS Page INTRODUCTION TO THE STUDY . . . . . . . . . . . . ..... i I. THE LAW AND FREEISPEECH . ..... . . . . . . . . 1 Early Concepts The Espionage Acts Significant Speech Cases from 1917 to 1940 The Alien.Registration.Act. II. RHETORICAL PRACTICES on THE comrsr PARTY or THEUNITEDSTATES OFAMERICAR. . . . . . . . .. 36 Uses of the Discussion Process Parliamentary Procedure Argumentation and Debate Public Speaking Rhetorical Concepts A Communication Model III. THE OPENING SPEECHES . . . . . . . . . . . . . . . . 74 The Challenge of the Array The Opening Statements Further Statement by the Court to the Jury After the Openings IV. THE CASE FOR THE GOVERNMENT. . . . . . . . . . . . 133 Introduction The Specifications of the indictment Aesopianism: The use of Protective Language Democratic Centralism: Leninist Discipline as seen in the monolithic structure of the Party V. THE CASE FOR THE DEFENSE . . . . . . . . . . . . . 167 Reply to the Specifications of the Indictment 'VI. THE SUMMATION SPEECHES . . . . . . . . . . . . . 197 The Clpsing Statements The Charge to the Jury m. HIE APPE The Can The Sup IIII. CONCLL’SI BIBLIOGMPHY VII. THE.APPELLATE DECISIONS. . . . . . . . . . . . . . . 263 The Court of Appeals The Supreme Court VIII. CONCLUSIONS . . . . . . . . . . . . . . . . . . . . 273 BBLIOW e e e e e e e e e e e e e e e e e e e e e e 283 i great nun sancerned 'ith d6 te role Of “a“ fietorical Cl‘itic '5.“- and means is '11:, there be"? irreuic Or 19831 America has attention of the as; then. Howe nations of the If we can a la could also sug ifiiaticated for "31!. addressed 51a of address f if?“ 1“, Fat i My faced by e The lignih INTRODUCTION TO THE STUDY .A great number of studies in rhetorical criticism have been concerned with deliberative oratory and with orators who spoke in the role of statesmen, active politicians and reformers. To the rhetorical critic, the orator who addresses himself to policy and ways and means is, perhaps, of the greatest interest. Even admitting .this, there have been relatively few studies conducted in the area of forensic or legal pleading. America has produced those forensic speakers who commanded the attention of the rhetorical critic, Jeremiah Black and Clarence Darrow among them. However, few critics have attempted to approach the questions of the significance of contemporary forensic pleading. If we can admit that oratory is the voice of free republics, we could also suggest that, in a constitutional republic, the most sophisticated form of address is the pleading heard in the modern courts, addressed to great constitutional issues. Here we have a form of address framed in all the ancient and honorable phrasings of the law, yet it is speaking addressed to the broadest issues of policy faced by each succeeding generation. The significance of United States v. Egggig.gt.31 is found in the length and bitterness of the trial and in the importance of the Supreme Court findings to the field of American public address. The defendants, all members of the National Board of the Communist Party of the United States of America, were indicted in July of 1948. Iidictaent '53 agistration AC Sch Act conta ever enacted in 1 laifee, Jr. I teach and advoct sat in the EMT satiety, group, at advocating 1 :the I’nited St thrged Iith con In regard Lu'Postulsted th iizerature, Ihic Twist times, 1 :Mnist Iho is I: We Inte "18 t 1 ii Indictment was brought under Section two of Title One of the Alien Registration Act of 1940, known as the Smith Act. This title of the Smith Act contains "the most drastic restriction of freedom of speech ever enacted in the United States during peace," according to Zechariah l Chaffee, Jr. This title makes it unlawful knowingly and willfully to teach and advocate the duty and necessity of overthrowing any govern— ment in the United States by force and violence, or to organise any society, group, or assembly of persons for the purpose of teaching and advocating the duty and necessity of overthrowing any government in the United States, or to conspire to do either. Defendants were charged with conspiring to do both. In regard to the length and bitterness of the trial, it could be postulated that defendants would have been influenced by Communist literature, which contains, beginning with the writings of Lenin in Csarist times, instructions to guide the tactics and conduct of the Communist who is brought to trial. An American pamphlet drawn up by the International Labor Defense in the early years of the depressions and entitled Under Arrest! How to Defend YOurselfiin Court! offers the Party member the following insthuctions: "Bring out the class issues at the trial. In most cases the judge and prosecutor will try to evade the class character of the case, . . Make a demand for a new panel. . . _ Of course, the judge will deny this challenge. Yet this motion will make a profound effect upon all present, especially the workers, before when the court will at once stand exposed as the bosses' tool for'the suppression of the working class. . ." The thirty—page pamphlet contained other instuctions on how to stall legal procedures, create confusion in the churtroom, plant strategic doubts in the public mind, put forth the Marxist—Leninist concept of '— 1 . Zechariah Chafee, Jr., Free Speech in the United States,(Cambridge: Harvard University press, 1954.) I", ”pro‘ye. if at a11--0 safeguard P1' The ca apinions whi' certitutiom LSEIIIUIIOHE he book, LBJ An exam the mos into th Niemotk cause 0. dissent: The Com insulated Jug Why I... :‘9 courts] m ’CIear a :srohability, End the dang trial judge to jiige, therefm Chief Jue filmed JUdge h (med under 1 \ 2 1w. Frencls I ' Harper 3 5111 RL. J901‘ “dish, g8 P. OUSG iii law, "prove" the class bias of the court by statements which can be disproved—- if at a11--only by long digressions, and, not least, demand every right and safeguard provided by the law of the land. The case has considerable significance in regard to the Supreme Court 1. is quoted in basic opinions which it produced. United States v. Dennis gt constitutional law texts published since 1951, such as Introduction to American 2 Constitutional Law, by Francis H. Hellar. George P. Rice, Jr., writing in his book, Law For The Public Speaker, states, An examination of the relevant cases reveals that, probably, two of the most informative and instructive cases to study for insight . into the Court's attitude and methods in speech cases are those of. Niemotko and Dennis. And in no instance known to the writer has the cause of free legal speech been expressed more cogently than in the dissenting opinion of Mr. Justice Douglas in the latter case. 3 The Court of Appeals decision, written by Chief Judge Learned Hand, re— formulated Justice Holmes' "clear and present danger" test. Thenew test was to be "clear and probable danger." As Judge Hand wrote, "In each case they [thecourtél must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." Judge Hand also approved the procedure of allowing the trial judge to balance the repression with the evil when discounted. The judge, therefore, was to define the new limits of freedom of speech. Chief Justice Vinson wrote for the majority on the Supreme Court and ad0pted Judge Hand's reformulation. The “clear and present danger" test devised under less serious circumstances was not to encase the government Francis H. Hellar, Introduction to American Constitutional Law, (New York: Harper and Brothers, 1952). 3George P. Rice, Jr., La1_Eg;_1hg_flnhlig_§ngakgr (Boston: The Christopher Publishing House, 1958), p. 40. na'hesantic st deed and Burton h I: the Present c heprobablet act he trial judge, The Dennis Em 11" rule 80. Faint-b A“ pm annalconspira( wile th’wgh tI Insult Of this c gresent only an "e entities to be p {aliasing the c108 21:1 judge saute“ thilfor conten ifrhetoric and P“ Abasic cont fitting the period anntyand ocade ihsdto advocat Iffe‘ueehad been t .ththan advoca 1 . Did the stated 1 iv in a "semantic strait jacket." Chief Justice Vinson and Justices Reed and Burton held that the "clear and present danger" doctrine meant (in the present context) only that the danger to be guarded against need be probable, not that it be "present," and that it was a question for the trial judge, not the jury, to decide. The Dennis case, therefore, became a precedent embodying a stern new rule governing political discourse in the United States. The Smith Act predicted and the trial court discovered, a new kind of criminal conspiracy, a "rhetorical conspiracy," a conspiracy to commit a crime through the methods of advocacy. The Supreme Court held, as a result of this case, that, henceforth, rhetorical activities need present only an "evil" or danger that was probable in order for such activities to be punished. This, coupled with the fact that immediately following the close of this bitterly contested nine-month trial, the trial judge sentenced the five defense attorneys and Mr. Dennis himself to jail for contempt of court, raises certain questions for the student of rhetoric and public address. A basic contention of the defense had been that their activities during the period of the indictment constituted only legitimate political activity and academic and philosOphical discussion of revolution as opposed to advocation of revolution. .Another major contention of the defense had been that Marxist-Leninist theory only predicts revolution rather than advocates it. The basic issues in the case then became: 1. Did the activities of the Communist Party, during the period stated in the indictment, constitute "advocacy of discussion"? 2, Did the a "c1931 Thehaaic questic argaaenta which 1 dam in this case fear questions: 1' What Org in 381‘“ 2, What arg nintain (Did the govern!ne 3. What '88 advocate" " 4. What rhe in uphol By the term ISIQII as the tr £11 persuasive us dec see. In ad atrial Judge ME anions "men helped. As Fr e it \9 "lawyers 8P9 out, whether th the ' 0 in' P Ions er ‘a “ been interpre 2. Did the activities of the Party, during this period, constitute a "clear and present danger"? The basic question to be apporached here is: What were the issues and arguments which led to the significant opinions on free speech handed down in this case? Specifically, the study will attempt to answer four questions: 1. What arguments and evidence did the government put forward in maintaining the contentions in the indictment? 2. What arguments and evidence did the defense put forward in maintaining their position? (Did they, as predicted, try to turn the tables and put the government on trial?) 3. What was the rhetorical nature of the "conspiracy to teach and advocate" which the trial jury found here and which is now prohibited? 4. What rhetorical criteria did the appellate courts appear to use in upholding this conviction? By the term pleading in the title of this study is meant the documents as well as the transcript of oral argument and examination of witnesses. .All persuasive use of language, it is believed constitutes the rhetoric- of a case. In addition to all pleading, the instructions to the jury by trial Judge Medina (which became a point of controversy) and the opinions written by the Court of Appeals and the Supreme Court will be analyzed. As Frederick A. Philbrick wrote in his book, Languagg and the “Leg, "Lawyers speak to persuade. This is true of all their language in court, whether they are advocates appearing for the litigants or judges whose opinions are intended to convince all who read them that the law has beeninterpreted correctly." 4 Criteria for this study are drawn from the standard texts of 5 .Argumentation such as the Tau Kappa.Alpha text, Argumentation and Debate. an 4FrederickA. Philbrick, La ua e and the Law,(New York: Macmillan Co. 1949), p. vi. 5 t t’o and Debate prepared under the auspices of Tau Kappa Alpha, David Potter, ed., iNew York: The Dryden Press, 1954). idditional crite M, by he 6 hul Stricker. hm been adopts. ferenlic English Neforenuic .ty] tFlel are charac 1) Factual Particul uPreeae Value in 2) EIOtiVQ in Value (These t, Iain my] ithen corral“ea "Th. loud in chic“: Cri di'trQCted f vi Additional criteriamfor legal pleading have been sought in Langgage and the Law, by Frederick.A Philbrick, and The Art of Advocacy, by Lloyd 6 Paul Stricker. Frederick Philbrick's criteria for style in legal pleading have been adopted for purposes of this study. Subtitled "the semantics of forensic English," the Philbrick study makes a basic distinction between two forensic styles: the factual style and the emotive style. The two styles are characterised as follows: 1) Factual language - concrete, exact, precise, specific, particular, and where such statements are relevant, expressed in quantitative statements rather than in value judgments. 2) Emotive language - abstract, vague, general, and expressed in value judgments rather than in quantitative statements. (These two kinds of language, Philbrick suggests, are the two main styles that can be distinguished in forensic English.) He then correlates the two styles with the two basic moods to be induced: "The mood induced consists either mainly of a)thoughts that are focussed on the facts, precise, cold, hard-boiled, logical, cynical, critical, and vigilant-—realistic and down-to-earth are good summary words here--or mainly of b) emotions that are distracted from the facts, vague, warm, irrelevant rather than logical, and optimistic, even religious. The (a) mood is on the whole induced by the factual style; the (b) mood by the emotive style. (The author concludes this discussion by suggesting, perphaps wisely, that "it is probably too ambitious to be more definite than this.") 7 Philbrick is also concerned with what he terms bias words, which form a special type of projective word: ‘Projective words he defines as those words such as "beautiful" or "interesting" that are used to project the feelings of the user on to the object described. 6 Lloyd Paul Stricker, The Art of Advocac , (New York: Simon and Schuster, 1954.) 7 Philbrick, 22. 913., pp. 60-61. Documents were reduced to named to dis ie type of for) To establ; murred Chaptei In in free ape am (1950). T1 mm, the Sup: twentieth ce Friction of the map: is made hricen Comuni iucuuion, purl Chapter Th the United St fur the ‘0‘."an HDefendant Eu 2. “mm“? on vii Documents and oral arguments as well as examination of witnesses were reduced to a technical plot outline and substance outline and analysed to discover the invention and disposition of argument and the type of forensic style employed.8 To establish the legal and political context in which the trial occurred Chapter One reviews historical pleading under the First Amend- ment in free speech cases from the Schenck case (1919) to the Bonds case (1950). This chapter is designed to state, as rules for the orator, the Supreme Court opinions on the important speech cases of the twentieth century. Chapter Two is an investigation of the rhetorical practices of the Communist Party of the United States of America. An attempt is made to describe the rules, procedures, and customs of the American Communist Party as they concern the Party's historical use of discussion, parliamentary procedure, debate, and public speaking. Chapter Three is an analysis of the opening speeches made by the United States Attorney of the Southern District of New York for the government, the five defense counsel retained by the defendants, and Defendant Eugene Dennis, speaking pro as. Chapter Four analyse's the testimony and documentary evidencepresented by the government. BOpening and Summation speeches and examination of witnesses were out- lined in substance with major and minor contentions and supporting statements indicated. Comments on style were prepared in the margin of the substance outline. The Latin or Roman brief code sequence ewes used in outlining. .A technical plot outline of each speech and examination was then prepared indicating by outline symbol the argumentative structure, type of support material, or rhetorical device each unit of the substance outline represented. Modes of reasoning found in major argumentative units were indicated in the margin of the technical plot outline. An effort was made also to suggest in the margin of the technical plot outline the intellectual source of major arguments . thter Five one ‘2; the defense; men. The Open we! in classic uddocuueuts, i alum; with ele: [messes and th. nachos my be éfclmicel am ”f 'l 0 "speech" Chupter Set Ellhtuttelpta t, Whoa. Postult hiding. to the I viii Chapter Five analses the testimony and documentary evidence presented by the defense; Chapter Six is an analysis of the summation speeches given. The opening speech in legal pleading is thought of here as the proem in classical disposition, the material case, consisting of testimony and documents, is seen as the proof of the narration suggested in the opening with elements of refutation included in the cross-examination of witnesses and the appearance of rebuttal witnesses. The summation speeches may be thought of as constituting the summary or peroration of classical arrangement. The entire legal case, then, may be thought of as a "speech" or rhetorical effort. Chapter Seven analses the appellate court decisions. Chapter Efight attempts to draw conclusions in the form of answers to the four questions postulated above, and to suggest the significance of these findings to the student of.American public address. The red stretches from the Supreme C0 the relationsh through 1941 h It is th overview of th speech and ass to state rheto Judicial opinic that . in rhetm free speech in Men were tectiou for the 3f Speech 01‘ an George I). trained chlEflv i: - the” basic CHAPTER I THE LAW AND FREE SPEECH The record of jurisprudence regarding speech in this country stretches from the trial of John Peter Zenger in 1735 to Ullman v. United States in 1956 and is found principally in the Reports of the Supreme Court of the United States. The definitive history of the relationship between rhetoric and the law in the United States through 1941 has been written by Zachariah Chafee, Jr? It is the purpose here to review this history briefly to develop an overview of the judicial positions taken in this country regarding free speech and assembly prior to the Dennis trial. An effort will be made to state rhetorical principles which have evolved from the several judicial opinions. The problem addressed here is basically the question: what, in rhetorical terms, have been held to be the limits of permissible free speech in the United States? Early Concepts Men were concerned from earliest times with the securing of pro— tection for their persons and property. No direct reference to freedom of speech or assembly is to be found in Magna Charta. George P. Rice, Jr? has pointed out that modern public speakers, trained chiefly from classical sources, receive little or no instruction in their basic legal rights and responsibilities. Such a study would 1 - ' Zachariah Chafee, Jr., Free Speech in the United States,(Cambridge: Massachusetts, Harvard’UniVersity Press 1954.) 2 George P. Rice, Jr., Law for the Public Speaker,(Boston: The Christopher Publishing House), 1958, p. 12 // l necessarily ir or violent cha before the bar jurists that t in1572 claime he vent to the The firs 0f sedition, A Iere punished h '88 confined to sedition has co tranquility by While pro century ( as mis in Act '38 nut hosed in Eagle, Prior apprOVal ‘ in1695, not on but simply beca, ThTOUEh I] 3 4%” p Chafee, necessarily involve the history of those speakers who advocated unlawful or violent changes in the social order and found themselves defendants before the bar of justice. It is in the minds of British and.American jurists that the limits of the orator's freedom have been drawn. Per- haps the first English orator to test the limits of free speech was Sir Peter Wentworth, a member of Parliament, who in a brief speech in 1572 claimed parliamentary immunity for himself and his colleagues. He went to the Tower of London for his "impertinence.§ The first concept which proscribes permissible speech is the concept of sedition. As late as the 15th century, offenses described as seditious were punished by death as treason. By the time of Henry VIII, treason was confined to more dangerous offenses. In modern times, the term sedition has come to mean "practices which tend to disturb internal public tranquility by deed, word, or writing, but ... which do not amount to treason.fi While prosecutions for seditious words continued through the 17th century (as misdeameanors), the control of the press through the Licens— ing.Act was much more severe. This was a parliamentary ordinance, passed in England in 1643, requiring that no book be published without prior approval of government censors. The Act was abolished by Commons i111695, not on the basis of a broad principle of freedom of the press, but simply because Parliament came to see the Licensing.Act as bad law. Through the 18th century, the law covering seditious libel, which 3 Ibid., p. 13 4Chafee, loc. cit., p. 497 consisted 0f ‘ Published "14 lorernment aga Prosecutions “I legal ooctrine ltrsto Comic: ytheir middle struggle for int toonas Erskine 9 Gradual 1V Fox’s Libel Act all owed the .jur‘ consisted of written or printed matter found by the court to have been published with a seditious intent, became the chief weapon of the government against the advocacy of political reforms. Successful prosecutions were frequent. During this period, two controversial legal doctrines greatly limited freedom of speech and assembly. First, conviction was made much easier because true as well as false criticism of the government could be punished. Truth was no defense. In fact, it was not allowed to be an issue at all. Second, as the judges were appointees of the Crown largely from the upper class, and juries were drawn from the middle classes, the result of a prosecution often depended on whether the main issue should be decided by the judge or the jury. The judges' decision reflected his upper class, conservative background. The juries' decisions were influenced by their middle class thinking, which tended to be more liberal. In the struggle for jury control of the issues the leadership was taken by Thomas Erskine, who was counsel for the defense in many of these cases. Gradually the concept of sedition was liberalized. Charles James Fox‘s Libel Act of 1792, which was copied throughout the United States, allowed the jury to bring in a general verdict of guilty or not guilty, thus giving jurymen the power to acquit when they thought that the book or speech was not seditious. In the United States, state constitutions and statutes made the truth of an allegation a defense in all criminal libel cases if published with good motives. Even the Sedition Act of 1798, Which was severe, made the truth of a statement a defense and let the jury determine all the issues. Juries, however, during periods of excitement in England and the United States, proved as eager to convict as had judges earlier. The Procedural Cb? reinforced by Bentham in Eng. Gradually’ the dram: and a 1 The mum of the times' denial of the hericau citize cases. Restric threatened. BU In such cases 8 Sullivan Black inaudnent and 1 At the tu: assassination 02 he New York Cr: irohibited man so ' eutially sea: 3 cat the frame r: if C(ingress to D I n l sedition than Q - . 'idltion Act of co - nstttutionalit i; ' ' Hence, ‘E 5 Chafee, . procedural changes did not have their full effect until they were reinforced by new political ideals expressed by such liberals as Bentham in England and Jefferson and Madison in the United States. Gradually, the lines which defined punishable speech became narrowly drawn, and a long series of sedition prosecutions came to an end. The concept of free speech may be said to act as a barometer of the times. During the Civil War, which was characterized by the denial of the right of habeas corpus and other basic civil rights, American citizens again found themselves defendants in free speech cases. .Restrictions seem to develop whenever the political order is threatened. But they, like the clients of Erskine, had their champions. In such cases as 3; parte Milliggg and‘gg parte McCardle, Jeremiah Sullivan Black and others ably defended the principles of the First Amendment and laid the groundwork for the Fourteenth. At the turn of the century, the Haymarket bombing and the assassination of President McKinley led to several restrictive measures. The New Yerk Criminal Anarchy Act of 1902 and the federal act of 1903 prohibited anarchists from entering the United States. These were essentially measures punishing overt acts rather than speech. It seems that the framers of the First Amendment intended to limit the power of Congress to proscribe speech, i.e. to further narrow the boundaries 0f sedition than those of common law seditious libel then existing? The Sedition Act of 1798 made blame of the government punishable; but its constitutionality was never tested, and it eXpired under Jefferson in 1800. IHence, we see that no major restrictive acts were passed until —— 5 Chafee, ibid., p. 36. 1917, and thl lilits of the Congre: 18, 1917, it In addition 1 tho were liat its disposal These laws co resist recrui or seeking by The Civ 1° be incompl. eIllist voluntt spiracy by bin obstruct the d empt 'hen hi To l"(fined let of J1me 15 0f duty, and (: inked Sfates ? .0 UbStructn We 91 $10,000 fine The POStm 30 tor that adu 1917, and the 19th century saw little conceptual development of the limits of the First Amendment. The Espionage Acts Congress declared war against Germany on April 6, 1917. On May 18, 1917, it passed the Selective Service Act to raise a national army. In addition to military and civil regulations for reaching the men who were liable to registration for induction, the government had at its disposal several criminal statutes enacted during the Civil War. These laws could be used to punish conspiracies of those aiming to resist recruiting and conscription by riots and other forcible means, or seeking by speeches and publications to induce men to evade the draft. >The Civil War statutes were believed by the Department of Justice to be incomplete since (1) it was not a crime to persuade a man not to' enlist voluntarily, and (2) that one man could not constitute a con— spiracy by himself, and deliberate attempts by a single individual to obstruct the draft, if unsuccessful, were beyond the reach of the law, except when his conduct was sufficiently serious to amount to treason. To remedy these deficiencies, the Congress enacted the Ebpionage .Act of June 15, 1917. The Act prohibited (1) false statements in regard to the war effort, (2) attempts to cause disloyalty, mutiny, or refusal of duty, and (3) obstructing the recruiting or enlistment service of the United States. The Act was amended on May 16, 1918, and the words "attempts to obstruct" were inserted in the third of the original offenses. Penalties 0f $10,000 fines and 20 years imprisonment were provided. The Postmaster General was authorized to bar from the mails any letter, pamphlet, book, or newspaper that violated any provision of the act or that advocated treason, insurrection, or forcible resistance to any law of th Iith-the-Enem to set up a ce the United Ste Department's l 1915, the Sahel damage or dest public or prit The May, and effect, a for saying or for uttering, abusive league the Conetituti ‘° bring these “ting curtail eere furl-her e from the !nails My Prove tha longer “Nessa effort had re: The DepE any law of the United States. More power was granted in the Trading- with-the-Enemy Act of October, 1917, which empowered the President to set up a censorship over all channels of communication between the United States and other countries, and widened the Post Office Department's powers to exclude material from the mails. In April, 1918, the Sabotage Act was passed, making it a federal offense to damage or destroy war material, utilities, or transportation, whether public or private. The May, 1918, amendment to the Espionage Act was, in purpose and effect, a sedition law, America's second. It provided penalties for saying or doing anything to obstruct the sale of Liberty Bonds; for uttering, writing, or printing "any disloyal, scurrilous, or abusive language" about the form of government of the United States, the Constitution, the armed forces, or the flag, or language intended to bring these institutions into contempt or disrepute; or for advo— cating curtailment of war production. The Postmaster General's powers were further extended to exclude any written matter of this description from the mails. The effect of the 1918 Act was that the government need only prove that an accused person had used disloyal language; it was no longer necessary tofiestablish that some harmful consequence to the war effort had resulted. The Department of Justice took vigorous action under these laws, 6 Oscar T. Barck, Jr. and Nelson M. Blake, Since 1900, A History _2£_the United States in Our Times, 3rd Ed., New York, The MacMillan Company, 1959, p. 231. 1.532 persons period, there rere generall. grounds, rath lira. Ros ten years for for profiteers Eugene Debs re the ear vas th President Hard. 1.1. were tried fines totaling AMinot t. mull free 3p £10391- “Ody. r et ‘fl'e regal-(hr 1,532 persons being arrested for disloyal utterances. During the same period, there were ten arrests for sabotage. Those who were indicted were generally Socialists or people who opposed war on ideological grounds, rather than because of sympathy for the enemy. Mrs..Rose Pastor Stokes, an early Communist, was sentenced to ten years for asserting, "I am for the people and the government is for profiteers." However, a higher court set aside her conviction. Eugene Debs received a ten year sentence for saying in a speech that the war was the "supreme curse of capitalism." He was pardoned by President Harding on Christmas Day, 1921. One hundred leaders of the I. w;w. were tried in Chicago before Judge Kenesaw M. Landis, and drew 7 fines totaling $2,300,000. Against this background, the investigator has selected certain leading free speech cases in the political field beginning in 1917, for closer study. The purpose here will be to present a view of the positions the government and the courts have taken, prior to the trial of Dennis, gjugl., regarding the orator and the limits of his freedom. Significant Speech Cases from 1917 to 1940 ,!25325 Publishing 93, XLHEQEEEQ? —-In 1917, Learned Hand was on the bench of the federal court for the Southern District of New York. In this case, Judge Hand was asked by plaintiffs to enjoin the Post- nmster of the City of New York from excluding from the mails the August issue of The Masses, a monthly Socialist journal, which con- tained several article, poems, and cartoons attacking the war. 7 Ibid. 8 244 Fed. 535 (S.D.N.Y., 1917). When no delete any pa_ such informat generally that it M to e the government one poem, and the "sacrifice Goldman and Ale resist the draj The impor finding 0 Viola “'9 raised the “flute, had me successful Pros and granted the 01 fr“ speech his, words are 0f action the V1018 talign be Min-Ce Of Acct”ding When notified of the exclusion, the publisher had offered to delete any passages pointed out by the postmaster, but was refused such information. After suit was started, the postmaster objected generally that the whole purport of the number was unlawful, in that it,tg§ggg_to encourage the enemies of the United States and to hamper the government in the conduct of the war. He specified four cartoons, one poem, and three articles. The material dealt with capitalism, the "sacrifice” of conscientious objectors, and the cases of Emma Goldman and Alexander Berkman, who were in prison for conspiracy to resist the draft. The important issue was whether the postmaster was right in finding a violation of the criminal provisions of the Espionage Act. The case raised the question of whether the Congress, in constructing the statute, had made criminal 22y matter which tended to discourage the successful prosecution of the war. Judge Hand held that it had not and granted the injunction. However, he did place outside the limits of free speech anyone who counsels or advises others to violate existing laws. Words are not only the keys of persuasion, but the triggers of action, and those who have no purport but to counsel the violation of law cannot by any latitude of interpre- tation be a part of that public opinion whigh is the final source of government in a democratic state. According to Judge Hand's position, criminality under the Espionage Act would be determined by an objective test, i.e., do the words used incite to overt action against the government. This test would be left 91b“id.,“at p: 638. for juries to aaeaning eas safely engage policies, so Neverth law, The post addition, the "lect his can that speech is effect. of 'bat are used in 811 dective test Va the I" in dire The nation old-tine doctri Mg" througho BY its r it dGum ere was ed “"113 e First 10 for juries to apply. Hand had argued that, thusly, the.Act would have a meaning easily understood by the opponents of the war. They could safely engage in discussion of its merits and of the justice of war policies, so long as they refrained from urging violation of laws. Nevertheless, Judge Hand was reversed on a point of administrative law. The postmaster's decision must stand unless clearly wrong. In addition, the Federal Circuit Court of Appeals thought it desirable to reject his construction of the Espionage Act and to substitute the view that speech is punishable under the.Act "if the natural and reasonable effect of what is said is to encourage resistance to law, and the words are used in an endeavor to persuade to resistance.'l'l Judge Hand's ob- jective test was considered unsound. Advice or advocation to resist the law in direct language was repudiated as a requisite of guilt. The undoubted effect of the final decision was to establish the old-time doctrine of "remote bad tendency" in the minds of district judges throughout the country. By its rejection of the common law test of incitement, it deprived us of the only standard of criminal speech there was, since there had never been any well consider— ed discussion of the meaning of"freedom of speech" in the First Amendment. 12 RHETORICAL PRINCIPLE EXPRESSED: The orator will be punished if the 10Chafee, 22. cit., p. 45. 11Masses Publishing Co. v. Patten, 242 Fed. 102 (C.C.A. 2d, 1917). Judge Hough wrote the opinion. 12comm, 32. 3133., p. 50. Court determi encourage :99 my before the SM erable number Courts. The S. and was the mo tionli1 la" 88 mini“ uritte reported cases The def97 induction exam be unconStitut recipients to I could fairly b‘ the port” of C. action “thin ‘ no real questi constitutional the cWiener: There '8 eerretal‘l’ or t charge or mail \ 1 3 249 t 10 Court determines that he used words persuasively in an attempt to encourage resistance to law. 13 .fighgngk_v. United State;.-— The Espionage Act did not come before the Supreme Court until 1919. The war was over, and a consid- erable number of cases had already been disposed of in the District Courts. The Schenck case was the first to reach the high court and was the most influential on later development of constitu- tional law, as a result of the sppech test expressed in the opinion written by Justice Holmes. It was also one of the few reported cases where there was a clear incitement to resist the draft. The defendants had mailed circulars to men who had passed induction examinations, which not only declared concription to be unconstitutional despotism, but in impassioned language urged the recipients to assert their rights. Chafee concludes that such utterances could fairly be considered a direct and dangerous interference with the power of Congress to raise armies, and were also counseling unlawful action within Judge Hand's interpretation of the statute. Consequently, no real question of free speech arose. Nevertheless, the defense of constitutionality was raised, and denied. The Supreme Court affirmed the convictions. There was no question of evidence. Schenck was general secretary of the Socialist Party and had been shown to have had charge of mailing the circulars. On the question of whether these 13 249 U.S. 47 (1919). uruflars, or tected by the ofreason" f0 standard in t But it this C1] to the ( are 881( sen. W the def would b the cha in which free Spe fire in PTOtect that may Ovary cad Circumsta clear and substant] It 18 a e Holmes We 1! at War "man: abindrmIce to to long as men 55' any constltr Unless his wore 11 circulars, or any communication, regardless of intent, are pro- tected by the First Amendment, Justice Holmes expressed the "rule of reason" for the practice of public speaking that has become standard in this country: But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well-known public men. We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is 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. It is a question of proximity and degree. 14 Holmes went on in this opinion to point out that when a nation is at war "many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right." RHETORICAL PRINCIPLE EXPRESSED: The orator will not be punished unless his words are found to be of such a nature and are heard in such circumstances as to create a clear and present danger of causing successful interference with the war and security powers of Congress. (Hereafter referred to as the Schenck Rule.) 15 Frohwerk v. United States. -— In a case similar to the Schenck case, the defendant Frohwerk, a German Socialist, had published l41bid. _ 15249.,U.s. 204 (1919) several art. elite and me no convicte bad conspire .herican tre and on the [ lbich was M The ca defense in g by Holmes, b that there In case if more Del‘artment o article8 did distinguishe out that ho 'ho "'9 sub 0n the light ”Deer the circuu181 l"ubt Satisf Appeal because 0 f a uPopular pa 116 "Fe r H \ 16 Cha: 12 several articles in the Missouri Staats—Zeitugg on the constitution— ality and merits of the draft and on the purposes of the war. He was convicted under the Espionage Act on a specific showing that he had conspired to publish twelve articles describing the sufferings of American troops, on the constitutionality and merits of the draft, and on the purposes of the war. He received a ten year sentence which was afterwards commuted to one year. The case presented the problem of establishing an adequate defense in speech and sedition cases. This problem was seen early by Holmes, but he felt compelled to affirm this decision. He thought that there might have been cause for reversal in this particular case if more evidence had been presented on the record. Even the Department of Justice felt there was considerable question whether these articles did not merely advocate a change in governmental policy as distinguished from an obstruction of such policy. It was also pointed out that no special effort appeared to have been made to reach men who were subject to the draft. On the inadequately prepared record as it stood, the evidence might conceivably have been sufficient to sustain a conviction, since the circumstances and the intention, though not the words 22; fig, mnght satisfy the danger test. Appeals from sedition convictions had proved to be unsuccessful because of a lack of competent work by the defense counsel. "An unpopulaiflpacifist or radical often finds it hard to get a competent lawyer." 16, <:~ ' “ Chafee, 22. cit., p. 83. The main issr tionality of defendant sai stances, fall in the light essential for accused said eridence must couplets reco Due to a E'Pi‘mage Act this type of f IIIORICAL FRI. Sebeuck Mlle, said or done, 'ith the surroul oi the statute 13 The main issue in such a prosecution is usually not the unconstitu— tionality of the statute as a whole. The issue is whether what the defendant said or did, when connected with the surrounding circum- stances, falls within the terms of the statute as properly construed in the light of the free speech clause. Therefore it was held to be essential for the counsel for the accused to establish just what the accused said or did; among what persons, when, where and hoi? This evidence must be brought forth at the trial for an accurate and complete record. Such a record would be necessary for an appeal. Due to a lack of experience with the First Amendment, the early . Espionage Act defendants such as Frohwerk apparently suffered from this type of faulty defense. RHETORICAL PRINCIPLE EXPRESSED: To defend successfully against the Schenck rule, the orator must establish in court exactly what was said or done, and must further establish that this, when connected with the surrounding circumstances, does not fall within the terms of the statute under which the indictment was brought as the statute is properly construed in the light of the First.Amendment. (Hereafter referred to as the Frohwerk rule.) _ngg V. United StatesT8-- In a third Espionage Act decision, Eugene V. Debs was convicted and imprisoned. He was prosecuted for an attempt to cause insubordination in the army and to obstruct 17 ‘ 1-. 18249 U.S. 211 (1919) recruiting. to a convent; econosic view capitalism. convicted of he abhorred we proof was inti the draft. Holmes 5 ference with t the words used iJUStice Holme [esterhaVen.8 ‘ Probably com,“ the jury thOUg} ItilORICpL PERI broadly °°D8tru M Holmes and Bran. convictions Tii 14 recruiting. His indictment charged that he had delivered a speech to a convention of Socialists in Canton, Ohio, supporting Socialist economic views and characterizing the war as the supreme curse of capitalism. In this speech, he had approved the conduct of persons convicted of like offenses. He had also admitted at his trial that he abhorred war and had probably obstructed the war. However, no proof was introduced to show that anyone :33 provoked to resist the draft. Holmes accepted the jury's verdict as proof that actual inter- ference with the war was intended and was the proximate effect of the words used? Chafee argues here, "It is regrettable that he (Justice Holmes) felt unable to go behind the verdict. Judge Westerhaven's charge gave the jury such a wide scope that Debs was probably convicted for an exposition of socialism, merely because the jury thought his speech had some tendency to resist the draft." RHETORICAL PRINCIPLE EXPRESSED: Here we see the Schenck Principle broadly construed by the trial judge. Abrams v. United State:?—- In three succeeding cases, Justices Holmes and Brandeis dissented from judgments of the Court affirming convictions. These dissenting opinions have survived the convictions they represented and have found expression in subsequent majority decisions which have extended and broadened the limits of permissable speech. Cases in which Supreme Court Justices in minority opinions have enunciated new rhetorical-legal principles or have postulated 19 Ibid., at p. 214. 20 » 250 U.S. 616 (1919). new rules or they are the | principles we nulated. Fre the cornea la linority opin The ind Eii’e provisio Prohibited cor governments 8 p and Murmansk 1 of that War 1. Crusby Streets in Yiddish, sirl, 15 new rules or tests for legal speech are represented here because they are the first occasions on which these principles were for— mulated. Frequently they extend the free speech concept. These principles were later stated in majority opinions and became part of the common law. This process is best represented in a series of minority opinions written by Justices Holmes and Brandies in the 1920's. The indictment in the Abrams case was made under the more exten- sive provisions of the 1918 Amendment to the 1917 Espionage Act, which prohibited conspiracies to advocate curtailment of production of material necessary for the prosecution of the war, with the intent thereby to hinder the United States in prosecution of the war. The case was further complicated by the fact that defendants had agitated not against the war with Germany but against the government's policy of despatching American troops to Vladivostok and Murmansk in the summer of 1918. In the early morning of August 23 of that year leaflets were thrown from a building at Houston and Crosby streets in New York City. One set was in English and one set in Yiddish. Military police arrested six Russians, five men and one girl. The eldest, Abrams, was twenty-nine. The Department of Justice had prevented several other prose- cutions of so-called Bolshevists for opposition to the government's Russian policy, inasmuch as no war had been declared against Russia. However, the Abrams leaflets had called for a general strike among munitions workers, which was regarded as more serious. In the District Court, the overt acts were proved without contradiction. The defendants had distributed nine thousand leaf- lets before being stopped by lack of funds. However, no evidence Ias offered 1 lunitions wm It lust be re and Sedition the war with the statute a to prove intet from, The C0 mm“ lcted, Prot IhiCh Judge C18 Three 0f Immlm “mm? d'r.‘ cits received E . .Dht ”Wen to 16 was offered by the prosecution that the leaflets reached a single munitions worker or that they had had any other seditious effect. It must be remembered that the 1918 Amendment of the 1917 Alien and Sedition Act was a war—time act. It was motivated solely by the war with Germany and her allies. The nature of the language of the statute and the indictment was such as to require the govenment to prove intention to produce curtailment of munitions and an additional intention to interfere with the war with Germany. The only legitimate theory of guilt was that the circulars intended to cause armed revolts and strikes and thus diminish the supply of troops and munitions available against Germany on the regular battle front. The complex question that was raised was whether the Russian expedition was part of the war. Witnesses called by the defense to prove that such was not the case were disallowed. The defendants were convicted, probably on an erroneous theory of guilt held by the jury, which Judge Clayton's charge permitted?1 Three of the defendants, including Abrams, were sentenced to the maximum twenty years and $1,000 fine on each count. Two other defen— dants received fifteen years and $500 fines. The Supreme Court split seven to two, Holmes and Brandeis dissenting. The question at issue was whether the requisite evidence of specific intent existed. The Majority argued that defendants' plan of action necessarily involved, before it could be realized, defeat of the war program of the United States. ZIChafee, 29. 331,37.” p. 129. Holmes danger" rule: the First Am But whe fighti than th conduct by free is the in the only gr: out. T‘ It is a year if some pr expressi fraught inmediafi PUrposest to save immediat cOunsels "eepingt the free FHUORICAL pm} llilted 0‘11V b\ 10 leave the c Gm Presented by e f I \ 22 Abrams 17 Holmes' dissenting opinion elaborated the "clear and present danger" rule; and in so doing, stated the philosOphical basis of the First Amendment: 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 ideas - that 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. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command,"Congress shall make no law abridging the freedom of speech ." 22 RHETORICAL PRINCIPLE EXPRESSED: The orator's freedom should be limited only by the emergency that makes it immediately dangerous to leave the correction of evil counsels to time. 23 Gitlow v. New York.—— We come now to the police problem presented by efforts of individual states to punish speech against 22 23 Abrams v. United States, op. cit., at p. 616. 268 U.S. 652 (1925). the public 8 ilportance o co-defendant. one of the it Comunist not that the Gitl Ihirdly, the cases. In 1919 published a d t0 the format] three others ‘ Criminal Ana“ following MCK; January. 1920 JUStices POUHI Justices How It ‘es f . nttber’ they .my abom t Ihat Gitlow a 18 the public safety and welfare. Several considerations suggest the importance of the Gitlow case. First, Benjamin Gitlow and his co-defendants were ranking Communists; and this trial represents one of the first American efforts to apply statute law against Communist activity. Second, as we shall see, Judge Medina believed that the Gitlow decision might be controlling in the Dennis case. Thirdly, the "due process" clause was here first applied to speech cases. In 1919 the Left Wing broke away from the Socialist Party and published a document entitled "A Left Wing Manifesto," which led to the formation of two opposing Communist organizations. Gitlow and three others were indicted in New York under the New York State Criminal Anarchy statute. This statute had been enacted in 1902, following McKinley's assassination. The defendants were convicted in January, 1920. The conviction was upheld in the Court of Appeals, Justices Pound and Cardozo dissenting, and by the Supreme Court, Justices Holmes and Brandeis dissenting. It was admitted that defendants had distributed the "Left Wing Manifesto" and had published a paper, The Revolutionary figs. Further, they had spoken to different branches of the Socialist Party about the principles of the Left Wing. Also, it was admitted that Gitlow as business manager was responsible for the Manifesto's being published and circulated. However, they were charged with advocating criminal anarchy, defined in the New York statute as "the doctrine that organized government should be overthrown by force or violence, or by assassina— tion of the executive head or of any of the executive officials of gorernmen sedition law were saying. Anarchy Act y. Injority on t. case. Communi‘. °f Political The con be fairly Page touting, insis or °°“5titutio In the S of the Crimina inlike the Es; first Amendmen fourteenth Ame The Court had 'llberty" in 19 of government, or by any unlawful means. The advocacy of such doctrine by word of mouth or writing is a felony." The problem here is the serious restraint of free speech that occurs if speakers and writers are held guilty of violating a sedition law which did not seem at the time applicable to what they were saying. When Gitlow published his Manifesto, the Criminal Anarchy.Act was generally supposed to punish anarchy. However, the majority on the Court of Appeals applied it to communism in this case. Communism and anarchy can be said to be at opposite poles of political thought. The court argued that communism was not "a condition which could be fairly regarded as an organized government." Judge Pound, in dis- senting, insisted that organized government need not be representative or constitutional. In the Supreme Court, the only question was the constitutionality of the Criminal.Anarchy.Act as thus construed by the state courts. Unlike the Espionage Act free speech decisions, which came under the First Amendment, the Gitlow case came under the due process clause of the Fourteenth Amendment. The First Amendment restricts only Congress. The Court had refrained previously from deciding whether the term "liberty" in the due process clause protects liberty of speech as well as liberty of the person and of contracts. The majority of the court held that the statute did not impair Gitlow's freedom of speech. Defense counsel had argued that the state courts erred in rejecting the Schenck rule. Counsel further argued that Gitlow had been punished for doctrines and words because. of their supposed "bad tendency" to result in acts at some remote time. Justic the 'bad-tent doctrine whi of acts, pre rejected the hat for the It The Espionage intriguing .1). (Holmes) did 1 “8 the clear There we “d Circulatio the ll“Illifesto I 1"tillage of di court was Clea not merely the Justice 1 hide Beope of H .olhes believe Echenck rule 3 heargu“, "it to orerthro‘ t "5%in who 8 \ 24 1:! C. J. ‘ . Appliqbl1 2-3 1110" 20 Justice Sanford, in writing for the majority, virtually adopted the 'bad-tendency' test. This test is an 18th century English doctrine which permits the government to go outside its proper field of acts, present or probable, into the field of ideas. This decision rejected the Schenck rule, arguing that it merely served to decide how far the Espionage Act should be interpreted to extend to words. The Espionage.Act dealt primarily with acts. One reviewer found it intriguing when Justice Sanford informed Justice Holmes that he (Holmes) did not intend a test of general application, notwithstand- ing the clear words and specific assurances of Holmes to the contrary?4 There was no evidence of any effect resulting from the publication and circulation of the Manifesto. However, the majority held that the manifesto was no philosophical abstraction, but used the language of direct incitement. They held that the jury in the trial court was clearly warranted in finding that the Manifesto advocated not merely the abstract doctrine of overthrow, but action to that end. Justice Holmes wrote the dissenting Opinion. Because of the wide scope of the word "liberty" in the Fourteenth Amendment, which Holmes believed to include the concept of free speech, he held that the Schenck rule should be applied here. Were the Schenck test to be applied, he argues, "it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small 25 minority who shared the defendant's view." 24C. J. Antieau, "The Rule of Clear and Present Danger: Scope of Its Applicability," 48 Mich. 1._._ .11... 812 (1950). 25Gitlow v. New York, 22. cit., at p. 652. To the incitement, . It offers it: some other hi the movement The Git to protect 11 cisively esta abandoned here Slith of New 3 after and etc; RHETORICAL PM llIbJ‘ected to a role denies hi I M: V hilt by flame; lellesley EradL had jOined the an" the Left 21 To the argument that the Manifesto was not a theory, but an incitement, Holmes replied flatly, "Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birthge" The Gitlow case remains important in that the Court's power to protect liberty of speech under the Fourteenth Amendment was de- cisively established. The Schenck rule, which seemed to have been abandoned here, was reclaimed in later cases. Governor Alfred E. Smith of New York pardoned Gitlow and his associates shortly there— after and stopped further Anarchy.Act prosecutions. RHETORICAL PRINCIPLE EXPRESSED: For the orator's words to be subjected to a'remote bad—tendency' test rather than the Schenck rule denies him due process of law. 27 Whitney v. California. -- This case raises the problem of guilt by associatiofi? Miss Whitney was a woman nearing sixty, a Wellesley graduate long distinguished in philanthropic work. She had joined the Socialist Party prior to 1919. During that year, after the Left Wing take—over at Chicago, she became a member of the new Communist Labor Party and went as a delegate to a convention 26 Ibid. 27274 US. 351 (1927). 28 , . Rice,.gp. c1t., p. 25. in Oakland, California b I and the procel rigorously 81' oil to capturl voted this dol party, which the seizure o strikes, Desi: h t conviction “Dd h d clung, teachi day Of the Coy doting the sul. sabotage, or 11 0f terrorism a 8h1p 0r Co A reView dIed , a v10 22 in Oakland, California, in November, 1919, called to organize a California branch of the new party. The Oakland convention was openly held, reporters were present, and the proceedings of the convention were published. Miss Whitney vigorously supported a resolution that the new state party should aim to capture political power through the ballot. The convention voted this down and adopted the Chicago platform of the national party, which in terms similar to Gitlow's Left Wing Manifesto urged the seizure of power by revolutionary industrial unionism and general strikes. Despite her defeat, Miss Whitney remained throughout the day of the convention and attended one or two committee meetings during the subsequent month. This was the extent of the evidence which resulted in her conviction under the California Criminal Syndicalism statute. This statute defined syndicalism as "any doctrine or precept advo- cating, teaching, or aiding and abetting the commission of crime, sabotage, or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change."29 .A review of her correspondence failed to show that she ever advocated a violation of any law. She was almost the only witness for the defense, and her direct testimony occupies only three pages in the 1,000 page transcript while more than twenty witnesses testi- fied for the prosecution. Also her defense was greatly hampered by the sudden death of her counsel during the trial. A great deal of 291919 Cal. Statute — Cal. Gen. Laws (Deering, 1937) Act 8428. I the evidence Party which : she was nevel of atrocitie' Oakland cont" the I,W,W, b; Chicago. Miss M in San Quenti her presence Ofltside the 5 Amendment. 0' "’9 Comicte. JuStice I Joined, The ( ffllyeHOUgh m limited Power coape11ed to s homer, with SmdicaliSm Aci by the CalifOrr of COHSpiracy, approachins auc hintended by l to restrictec \ 30 Whitney 23 the evidence admitted by the court dealt not with the Communist Labor Party which the defendant had joined, but with the I.W.W., with which she was never connected. This evidence, composed largely of a recital of atrocities committed in California by the I.W.W. years before the Oakland convention, was admitted because of a brief endorsement of the I.W.W. by the national convention of the Communist Labor Party in Chicago. Miss Whitney was convicted and sentenced to one to fourteen years in San Quentin prison. The majority of the Supreme Court held that her presence at the Communist Labor Party convention was enough to put her outside the shelter given by the term "liberty” in the Fourteenth .Amendment. Only two others of the one hundred attending this convention were convicted of similar charges. Justice Brandeis wrote a concurring opinion, in which Holmes joined. The constitutional issue,they argued, had not been presented fully enough at the trial to bring the case within the Supreme Court's limited power of review in state criminal cases; hence, they felt compelled to sustain the conviction. Brandeis disagreed sharply, however, with the application of the First Amendment to the California Syndicalism.Act. He pointed out that the crime of membership created by the California statute was completely different from the old felony of conspiracy, which requires an act by at least one of the group approaching successful accomplishment of a serious crime which must be intended by all the conspirators. Moreover, he argued, the evil 30 to be restricted must be "imminent" and "serious." 30 Whitney v. California, 23. cit., at p. 376. One 16 were "echoes entry into it and tried wh Court took a fact that an country, the tion 118‘s of of free speech the it“Portlant in this cas e h °f gambling, h that lay “for Perfol‘ming the the chief of F tinneaopolls ‘ 24 One legal reviewer suggests that the Gitlow and Whitney cases were "echoes" of the "First Great Hysteria" which began with our entry into World War 1. Both Gitlow and Miss Whitney were indicted and tried while the hysteria was at its height. Further, the Supreme Court took a long time deciding the cases, probably because of the fact that such prosecutions in peacetime were a novelty in this country, there having been none since the prosecutions under the Sedi- tion Laws of 1798?1 RHETORICAL PRINCIPLE EXPRESSED: The orator should be punished only if he is shown to be directly associated with a rhetorical effort creating a danger found to be both serious and imminent. ‘Ngg£.v. Minnesota?2—- Issues raised here include the position of free speech and press in relation to discriminatory taxation and the important question of previous restraint. In 1927 the defendants in this case had published charges that a Jewish gangster was in control of gambling, bootlegging, and racketeering in Minneapolis, and that law enforcement officers and agencies were not energetically performing their duties. Most of the charges were directed against the chief of police, but the county attorney and the Mayor of MinneaOpolis were also charged with inefficiency and dereliction. A 1925 Minnesota statute provided for the abatement, as a public nuisance, of a "malicious, scandalous and defamatory news— paper, magazine, or other periodical." Under this statute, the 31Louis B. Boudin, "Seditious Doctrines and the ”Clear and Present Danger Rule," 38 Virginia L. R. 143 (1952), p. 165, 32 283 U.S. 697 (1931). county att to enjoin defendants. upheld the permanent and of spe clause of although t The Violated t, first free Chief Just; “89 in wh; Previous r, 'hiCh inch The ‘ that the 01 sense, but The “Hut. Press gut”; on Blacks t. lafing no t Cifiion’ th Ibere' Th, hostility . ad), ConCe i‘ 25 county attorney of Hennepin County brought action against Near _1_t_ __l. to enjoin the publication of The Saturday Press, published by the defendants in the city of Minneapolis. The State Supreme Court upheld the constitutionality of the law, and later issed a permanent injunction. The majority held that liberty of the press and of speech i§_within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action, although this liberty is limited. The issue brought to the Supreme Court was whether this statute violated the essential attributes of that liberty. It was the first free speech and press case to reach the Court under the tenure of Chief Justice Charles Evans Hughes. Furthermore, it was the first case in which the Supreme Court had to pass on the question of previous restraint. Chief Justice Hughes wrote for the majority, which included Holmes and Brandeis. The judgment of the state court was reversed on the argument that the object of the statute was not punishment, in the ordinary sense, but suppression of the offending newspaper or periodical. The statute was found to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment. Hughes relied strongly on Blackstone's statement that "the liberty of the press consists in laying no previous restraints upon publication." Except for this de— cision, this type of statute would probably have been copied else— where. The case is important to free speech in that its strong hostility to previous restraints'against the expression of ideas may conceivably be applied to quite different forms of censorship, affeccin RHEIORIC. any prev 93.: 1937, du: reaction concept o importan‘ In this o Court fej The Portland, the shoot Hide on 'Itinatec 0011111111111“ and the ( Thea did u“ advm The several ( the Oregc the Control \ s. 33' 34‘ 26 33 affecting other media besides the press. RHETORICAL PRINCIPLE EXPRESSED: The orator may not be subjected to any previous restraints against the expression of his ideas. De Jonge v; Qgggggié-— Two cases reached the Hughes Court in 1937, during a new period of labor militancy and conservative reaction, which produced statements further defining the American concept of free speech. One was the De Jonge case, which involved the important corallary of free speech, the right of peaceable assembly. In this case, the state attempted to protect an interest which the Court felt too insubstantial to warrant restriction of speech. The Communist Party in 1934 had organized a public meeting in Portland, Oregon. Advertised by handbills, it was to protest against the shooting of striking longshoremen by the police and against illegal raids on workers' halls and homes. Some persons presenttat the meeting estimated that not over fifteen percent of the peeple there were Communists. The meeting was conducted in an orderly manner. De Jonge and the other speakers stayed closely to the subject of the meeting. They did sell some communist literature at the meeting, but this did not advocate criminal syndicalism or any other unlawful conduct. The meeting was raided by police, who arrested De Jonge and several others who were conducting it. De Jonge was indicted under the Oregon Syndicalism Act on charges of conducting a meeting of the Communist Party, which was identified as an organization which *‘ 330bafee,_gp. cit., p. 381. 34299 U.S. 353 (1937). “did then syndicali public an The or said 8 found 913 De Jonge 1 that [111181 denied. 1 The indictmem b“ t0 the Party of A was that D Party, reg In t. for 3 "Dan “8 'hethe] those only Party? The 58812”,ny f0 Court foLmd Party adv“ Chief Jum. C . 0fl81der Um the COHCGpt I as expanded 27 "did then and there . . . teach and advocate the doctrine of criminal syndicalism and sabotage . . . " His defense was that the meeting was public and orderly and held for a lawful purpose. The evidence of the trial failed to show anything unlawful done or said at the meeting. The prosecution introduced Communist literature found elsewhere to show that the party advocated criminal sydicalism. De.Jonge had moved for acquittal on the theory that the charge was that unlawful doctrines were urged at the meeting. This charge he denied. De Jonge was convicted and sentenced to seven years. The state supreme court upheld the conviction, saying that the indictment did not refer to anything said and done at the meeting, but to the advocacy of syndicalism and sabotage by the Communist Party of America. Hence, all that was necessary to show his guilt was that De Jonge had participated in a meeting called by the Communist Party, regardless of the innocence of the meeting. In the Supreme Court, Chief Justice Hughes wrote the decision for a unanimous Court, reversing the conviction. The issue presented was whether a man could be imprisOned for assisting in a meeting whose only unlawfulness lay in its being called by the Communist Party? That, said the Chief Justice, must not be! "Peaceable assembly for lawful discussion cannot be made a crime." The Court found no difference in the question of whether the Communist Party advocates force and violence or not, a question which the Chief Justice expressly left Open, and which the Court did not consider until 1951. It can be said also that with this case the concept of "liberty U as expressed in the Fourteenth Amendment, was expanded and now included speech (Gitlow), the press (Near), and assembly EHETORICA cannot be fig also reac in the G1 Schenck R Communist There be When arre Pamphlets N9 r0 ue: Belt," '[1 Negro InaJ'. benefit 0: and a rev. However, . the rai811 HErndOD h! and tho c; Def, aimd at 1 the Civil but kept 1 \ 35 3| 28 assembly (De Jonge). RHETORICAL PRINCIPLE EXPRESSED: Peaceable assembly for lawful discussion cannot be made a crime. Herndon v. nggz? -— In a sense, the Herndon decision, which also reached the Court in 1937, tends to validate Holmes' decision in the Gitlow case,.thus bringing the concept of free speech and the Schenck Rule full circle. In this case the defendant was a Negro Communist, who had gone as a paid organizer to Atlanta, Georgia. There he held three meetings and enrolled at least five members. When arrested, he had in his possession membership blanks and pamphlets, including one titled The Communist Position on the Negro Question, with the subtitle "Self—Determination for the Black Belt." The pamphlet called for one governmental unit, ruled by the Negro majority. Lands of whites were to be confiscated for the benefit of Negro farmers. It also advocated strikes, boycotts, and a revolutionary struggle for power against the white bourgeoisie. However, the writer admitted that the situation did not yet warrant the raising of the question of an uprising. There was no evidence that Herndon had distributed any of this material except membership blanks and two circulars about county relief. Defendant was indicted under a pre—Civil War Georgia statute aimed at those who would incite an insurrection of slaves. .After the Civil War, the state legislature omitted the references to slaves, but kept the statute on the books. It had never been enforced before 35 301 U.S. 242 (1937). asfar as re' his to twen' Essentially, surrection, \ open force. The tr] the defendam 101m agai Herndon was I hanged, but 1 tventy years basis of a 1, required by 1 that lack of trial JUdge l lads the (left my time, 88 natany time’ “firmed. At this first time at COM-t. The 29 as far as reported cases show. The death penalty was provided, or five to twenty years imprisonment if the jury recommended mercy. Essentially, Herndon was indicted for attempting to incite an in- surrection, with intent to overthrow the government of Georgia by open force. The trial judge charged the jury that, in order to convict the defendant, it must appear clearly by the evidence that immediate violence against the state of Georgia was to be expected or advocated.36 Herndon was promptly convicted. The jury could have let him be hanged, but recommended mercy, and he was sentenced to eighteen to twenty years in prison. Herndon appealed for a new trial, on the basis of a lack of evidence of his advocating the immediate violence required by the trial judge. Upon appeal the State Supreme Court held that lack of this evidence was immaterial. This Court argued that the trial judge had construed the statute too narrowly. His interpretation made the defendant guilty if he intended insurrection to happen at any time, as a result of his influence. Upon rehearing, the court said "at any time" meant a reasonable time. H wever, the conviction was affirmed. At this point Herndon invoked the Fourteenth Amendment for the first time and tried to take the case to the United States Supreme Court. The lateness of his appeal made it difficult, but eventually a writ of habeas corpus was directed to the sheriff, Lowry. The Supreme Court released Herndon by a bare majority, Justice Roberts writing the opinion. Reviewing the evidence, he concluded that it fell short of an attempt to bring about insurrection either immediately 36Chafee, gp. cit., p. 390 or within criminal o possession talked abo The "dangerous the Georgi able stand a remote t Opinions 1 test Wag l lent of t} reJ'ected 1 RHETORICA] ! ramote 1 Precess 0: the Conrt 30 or within a reasonable time. The more specific aims were not criminal on their face, he argued. Despite the booklets in his possession, all that Georgia could show was that Herndon had talked about relief. The state court had argued that Herndon's documents had a "dangerous tendency" to cause an insurrection. Roberts criticized the Georgia statute for failing to furnish a sufficiently ascertain— able standard of guilt, a condition which permits the application of a remote bad tendency rule and leaves judge and jury free to punish opinions they dislike. The Georgia court had insisted that its test was upheld by the Gitlow case. It is important to the develop- ment of the concept of free speech that Justice Roberts flatly rejected this view. RHETORICAL PRINCIPLE EXPRESSED: For the orator's words to be subjected to a remote bad-tendency test rather than the Schenck Rule denies him due process of law. The Gitlow principle is here expressed by a majority of the Court.1 The Alien Registration Act Representative Howard W. Smith of Virginia introduced H. R. 5138 in early 1939, and hearings began in April. The American Civil Liberties Union and two labor unions were the only opponents to the bill in these hearings. The fact that the Civil Liberties Union was promptly branded as communistic reflected the mood of the day. very little publicity or discussion of the bill was had outside of Congress. While Chafee and others have no explanation for the com— parative silence in the face of this "drastic proposal for suppression of discussion," war clouds were again gathering in Europe and sentiment against alien to the House tion camp8 to The fiv Senate JudiCi 1. T0 lutiDY’ or re United sta tes 2. T“ orany 8°v°rn( 3. T° ‘ aliens to tho: 4. Tot ordeportatioi for deportatii character' 5. T0 J Section 1 of 4 above. The 8“ this Section I National BoarC Seofion l migk of Congress, a otarmy and n8 of disaffectiO sedition law C speech ever This sec Gitlow was con California Syn 37 a Report 38 Chafee, 31 against aliens was apparently severe. In the original Smith bill sent to the House Judiciary Committee, there were provisions for concentra— tion camps to be established for deportable aliens. The five purposed of the statute, as set forth in the report of the Senate Judiciary Committee, are as follows: 1. To prohibit the advocacy of insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States. 2. To prohibit the advocacy of the overthrow or destruction of any government in the United States by force or violence. 3. To add several additional grounds for the deportation of aliens to those already provided by law. 4. To permit the suspension, subject to congressional review, of deportation of aliens in certain "hardship cases” when the ground for deportation is technical in nature and the alien proves good moral character. 37 5. To require the registration and fingerprinting of aliens. Section 1 of Title I of the final bill embodies the first purpose listed above. The second purpose is embodied in Section 2 of Title I. It is this section under which the United States indicted the members of the National Board of the Communist Party of the United States in 1949. Section 1 might be classed as an army and navy law within the war powers of Congress, although Chafee concludes that a review of the testimony of army and naval officers shows little or no evidence of any problem of disaffection in the armed forces. Section 2 is a full-fledged sedition law containing "the most drastic restrictions on freedom of speech ever enacted in the United States during peace?‘8 This section resembles the New York.Anarch Act, under which Gitlow was convicted and pardoned, and is almost as broad as the California Syndicalism Act, under which Anita Whitney was convicted .37 ‘ - Report of Senate Judiciary Committee, 1940, pp. 1-2. aschafee, fl. Cite, pa 4410 and pardoced. inerer re "6'1 (ongress tha‘ The Senate it held no hear] brief formal In the cuneiderable Regirration an initial d, the “001‘ of Punishment 0: reSmeiTted 1 on the gen“ 0 v OIhEr SEC?“ 0‘ 40 ‘ 1940. g) [‘3 and pardoned. As far as can be ascertained, the provisions of Section 2 never received a favorable report from any committee of the 76th Congress that had subjected them to the test of a public hearing. The Senate Judiciary Committee did recommend Section 2, but had held no hearings thereon and gave no arguments for it beyond a brief formal statement. In the House Judiciary Committee hearings, Section 2 encountered considerable opposition, r“The debates in the House on the Alien Registration Act were prolonged and extremely interesting.39 After an initial defeat, Mr. McCormack of Massachusetts brought it up on the floor of the House as an amendment to a different bill involving the punishment of spies. When this was defeated, Mr. Smith of Virginia resubmitted it as a measure in the Alien Registration Act, The vote on the Section 2 amendment was seventy-nine to thirty-two in favor of adaption, which was a narrow margin compared to the voting on the other sections. The Alien Registration Act became law on June 28, 40 1940. The final wording of Sections 2 and 3 of Title I gave the United States its most comprehensive sedition law: Sec. 2. (a) It shall be unlawful for any person - (1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government; (2) with the intent to cause the overthrow or destruc— tion of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter, advocating, 39Chafee, 33333,, p. 453. 4054 U.S. Stat. 670 (Chap. 439, 76th Congress, 3rd Session). Initially, H.Re 5138. ad*181 proprx the t: or ass the 011 States of, or of per. men: 15 States,; of the or the Sec. 3, commm .I the [MT 1- 33 advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence; (3) 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 affiliated with, any such society, group, or assembly of persons, knowing the purposes thereof. (b) For the purposes of this section, the term ”govern- ment in the United States” means the Government of the United States, the government of any State, Territory, or possession of the United States, the government of the District of Columbia, or the government of any political subdivision of any of them. Sec. 3. It shall be unlawful for any person to attempt to commit, or to conspire to commit, any of the acts prohibited by the provisions of this title. 41 Section 5 provides penalties of fines up to $10,000 and imprison- ment up to ten years for conV1ction of violating any of the provisions of the Title. The Act was first invoked in 1942 against eighteen Trotskyites in Minnesota. The Eighth Circuit Court of Appeals upheld the conviction and the Supreme Court denied certiorari. Also, during the war there had been an indictment of thirty alleged Nazi sympathizers under Section 1 of Title I, charging attempts to incite disloyalty in the armed forces. The presiding judge died after seven hectic months of trial, and the case was continued until 1945. In November of 1946, the District of Columbia Court of Appeals dismissed the indictment?2 One other relevant background case involved William Schneiderman, chairman of the California Communist Party. He had become the defen- dant in a denaturalization proceeding not involving the Smith Act. 41 Ibid. 42 .. . DaVid A, Shannon9,2bfluhfifllifle of American Communism, New York, Harcourt, Brace and Company, 1959: p. 196. In1943, the by"clear, c Party in the overthrow of On Jul from a feder tvelve membe United State followed a p Party was or American Ac: 0:1 the activ members Were JD), John B Dang, Jr., Potash9 Gllb The speciflc another "a nd solve the (“o m Fan)" of by forte and taught and a \ 43 ‘ D1 .0 3" York. I? 34 In 1943, the Supreme Court ruled that the government had not proved by "clear, convincing, and unequivocal evidence" that the Communist Party in the five years before 1927 had advocated violent or forceful overthrow of government.43 On July 20, 1948, the Department of Justice sought and obtained from a federal grand jury in New York City an indictment against the twelve members of the national board of the Communist Party of the United States of America under Title I of the Smith Act. This action followed a period of public discussion regarding whether the Communist Party was or ought to be declared an illegal party. The House Un— American Activities Committee had conducted a series of bearings bearing on the activities of the party during 1947. The twelve national board members were: William Z. Foster, Eugene Dennis (born Francis X. Waldron, Jr.), John B. Williamson, Jacob Stachel, Robert G. Thompson, Benjamin J. Davis, Jr., Henry Winston, John Gates (born Israel Regenstreif), Irving Potash, Gilbert Green, Carl Winter, and Gus Hall (born Arno Gust Halberg). The specific charges against them were that they had conspired with one another "and with divers other persons to the Grand Jury unknown” to dis- solve the Communist Political Association and to reconstitute the Commun— ist Party of the United States, ”a society, group, and assembly of persons who teach and advocate the overthrow and destruction of the Government. by force and violence," and then knowingly and willfully had caused to be taught and advocated such overthrow and destruction by force or violence. 43 Digest of the Public Record of Communism in the United States, New York, The Fund for the Republic, 1955, pp. 194—6. The indiCtmezz revoluuonary charged nth nth consprra government , July and were case against The trial 0pe the federal c '39 again pre the line be rm 35 The indictment did not allege that the defendants had committed any overt revolutionary act, only teaching and advocating. In short, they were not charged with a conspiracy to overthrow the government; they were charged with conspiracy to form a party to teach and advocate overthrow of the government. The twelve defendants were arrested without incident in July and were released upon bail. At the beginning of the trial, the case against William Foster was severed because he was in ill health, The trial opened on January 17, 1949, before Judge Harold R. Medina in the federal court building in Foley Square, Manhattan. The government was again prepared, at a time when it again felt threatened, to structure the line between free speech and sedition. We here held that the of free speec courts have c It is well es resistance tc heard in cm ference with N0 bad-tender Show to have previous rest Peaceable as: In 194( mm" or des‘ violence, 8m Nation Board for conspiri, PUrPOSe of I] the “tint“ 1919‘1948, e: 1948, Pm" in 194: 0‘; 36 CHAPTER II RHETORICAL PRACTICES OF THE COMMUNIST PARTY OF THE UNITED STATES OF AMERICA We have seen in Chapter I that the courts of the United States have 'held that there are certain practical and ultimate limits to the exercise of free speech. Within the ultimate context of sedition, however, the courts have clearly defined the broad scope of the orator's freedom. It is well established that the orator may not attempt to encourage resistance to law. But he may be punished only where his words are heard in circumstances creating a clear and present danger of inter» ference with the powers of Congress. The danger must be immediate. No bad-tendency test is to be used in weighing his words. He must be shown to have been directly associated with the danger created. No previous restraint may be imposed against the expression of his ideas. Peaceable assembly for his speechmaking has been held to be legal. In 1940, Congress prohibited the orator from advocating the over— throw or destruction of any United States Government by force and violence, and in 1948 the Government indicated the members of the Nation Board of the Communist Party of the United States of America for conspiring to form an organization for this purpose. It is the purpose of this chapter to attempt to describe the rhetorical nature of the activities of the Communist Party of America during the period 1919-1948, especially during the period covered in the indictment, 1945- 1948. As the government had charged that the reconstitution of the Party in 1945 was for the purpose of teaching and advocating the overthrow of the Government, and the Party had maintained that the actiVities Pl” academic discr rhet forms of orator had tr between the b' an effort 111 the Party see revolution, wk ”1'16. The re n” M POIitic lunity, but of debate revolVe 0‘ the America or the issue 0 Second Congres host, 1920, the American p CiPlihed 9 mono pom '83 in \1. 37 activities pursued during this period amounted to nothing more than academic discussion of Marxist theory, it is useful to inquire as to what forms of address and other rhetorical practices the Communist orator had traditionally employed during the thirty turbulent years between the birth of the Party and the Dennis trial. Subsequently, an effort will be made to suggest those rhetorical concepts which the Party seemed to have held during this period. The American Communist Party was, literally born in the midst of dispute and debate. It grew out of the historic left wing of the Socialist movement in this country. The catalyst was the Russian revolution, which thrilled and motivated early Marxists all over the world. The recorded history of the Party is essentially the history, not of political activity and communication directed to the larger com- munity, but of a continuing factional debate within the Party.44 This debate revolved essentially around the question of the "Bolshevization" of the American Party as opposed to the "Americanization" of the Party, or the issue of so—called "American Exceptionalism." Following the Second Congress of the Third (Communist) International in Moscow, July— August, 1920, there was never any question among the warring factions of the American Party as to the court of final resort. By then a highly dis- ciplined, monolithic international party had developed, and the seat of 3 power was in Moscow. q-. See especially the series, Communism in American Life, 3 volsl, . edited by Clinton Rossiter. (New York: The Viking Press, 1960), and William Z. Foster, History of the Communist Party of the United States: (New York: International Publishers, 195271f Questio solved in eec the Comintern the 1930’s, a ized the Part iicial party o Unit ( ' o Section I Dietric' I Politico Nationo I Central o Rationa} l Politic: reSpons Partiesl l Presidiu l Executi‘ I World Cc 38 Questions of "correct" Leninist policy and leadership were re- solved in each instance in a series of highly dramatic debates before the Comintern and the "American Commission" of that organization. By the 1930's, a rigid, military-like organizational structure character- ized the Party. The following scheme of this structure is from an of— ‘ ficial party manual: : Unit (later called Branch) — Bureau and Membership Meeting Section — Bureau, Committee, and Convention 9 District - Bureau, Committee, and Convention I Political Bureau of the Central Committee (later called the National Board) ' ' Central Committee (later called the National Committee) ' National Convention I Political Secretariat of the Comintern (later called the Cominform, responsible for sending representatives to the major nation parties) ' Presidium of the Comintern ! Executive Committee of the Comintern World Congress of the Comintern 45 Each member of what is now called the National Board is in charge of a special field of activity. Often the Board member has a commission under him through which he works; for example, the trade-union commission or the educational commission. These commissions are the principal rhetorical agents of the Party. A corollary to organization which has greatly affected the rhetorical practices of the American Communist Party has been its internal discipline. The chief agency of discipline has been the National Review Commission, 5. , ’ ‘ ; , See Louis F}.Budenz, The Techni es of Communi m, (Chicago: Henry “filnaryicui,.l954), Chapter 2. Reference is to J. Peters,g§gggglgg£ Organization, 1936.‘ rhich is 9190 National Boar Bureaucr By1934, the G cratic apparat that time held the teaching 0 Under an Sisking function node int Anyone who did Comunist," def withoUt adherirl label most recel in the sePtfimhel Gates' fate. Article I Procedures: Pro lollOIing: 39 which is elected by the National Convention and is responsible to the National Board and National Committee for auditing and discipline. Bureaucracy and discipline were already well developed by the 1930's. By 1934, the General Secretary of the Party had a considerable bureau-5' cratic apparatus at his disposal.47 The National Training School, at that time held at Camp Beacon, near Kingston, New York, was devoted to the teaching of strict discipline. Under such instructors as Jacob "Pop" Mindel and George Sisking (the latter recently deported to Poland), the functionaries were drilled in strictest discipline, and made into different personalities. 48 Anyone who did not become a "different personality" was a "pseudo— Communist," defined as "one who advocates Marxist-Leninist theory without adhering to Communist discipline."}'9 Krushchev applied the label most recently to John Gates, then editor of the Daily Worker, in the September, 1957, issue of The Kommunist. This effectively sealed Gates' fate. Article IX.of the Party Constitution, dealing with Disciplinary Procedures, prohibits the Communist orator from engaging in the following: Section 1. Conduct or action detrimental to the working class and the nation, as well as to the interests of the Party, violation 46 a See Articles VIII (National Review Commission), Ix (Disciplinary Procedures), and X (Appeals), 1945 Constitution of the Communist Party of the United States of America. Irving Howe and Lewis Coser, The American Communist Party, A Critical History (1919-1957). (Boston: The Beacon Press, 1957), p. 229. 4§Budenz,._p.ugit., p. 116 Harry and Boraro Overstreet, What We Must Know4About Communism, (New York: W. W. Norton and Company, 1958), p. 47. of decisions Section of any clique acts to subve tions of Amer Section national or to Section the working c. Section co-ittees me; he is a member shall act Upor that club. A] Section cases Shall be testify." Article Ienber Who has to the next hi b‘ final." Th18 is Comiesmn, 'h “351011 and th biographies a of those to be 1' net called I 0th to ”Sign The Cont] 40 of decisions of its leading committees or of this Constitution,... Section 2. Adherence to or participation in the activities of any clique, group, circle, fraction or party which conspires or acts to subvert, undermine, weaken or overthrow any or all institu— tions of American democracy,. . . Section 3. The practice or advocacy of any form of racial, national or religious discrimination. . . Section 4. Personal or political relations with enemies of the working class and nation. Section.5 states that "Charges against individual members or committees may be made by any member in writing to the Club of which he is a member, or to the leading committee having jurisdiction. Clubs shall act upon charges directed against anyone holding membership in that club. All such charges shall be handled expeditiously." Section 6 guarantees that "All persons concerned in disciplinary cases shall have the fullest right to appear, to bring witnesses and testify." Article X.dea1s with the right of appeal and assures that "any member who has been subject to disciplinary action has the right to appeal to the next higher body up to the National Convention, whose decision shall be final." This is the party judicial system supervised by the National Review Commission, which has previously been known as the National Control Com- mission and the National Cadre and Review Commission. The Commission keeps biographies and conduct reports on all Party members. It conducts "trials" of those to be expelled from the Party. Louis Budenz claimed that a trial is not called until the person involved has been adjudged guilty, and serves only to register that judgment. The Control Commission generally endeavors to attach to a charge of political weakness some accusation of personal depravity, in order N and ther The Natl Review CommiBS featured by P9 mel920 trial to argue his C nsbrought t0 hahnist line views on Germa graphed copies! cutor, screamel be handed up ti The Amer-I gauization fee. l tapecially unda Itrue Leninis the traditions: T - . It is int Mica“ CoInuiur \ 50 Budenz 51 ’ 52fiecut1 Jacob S “Nouns Co 41 order to destroy the reputation of the expelled comrade, and thereby to impair his credibility in the nonaCommunist World. 50 The National Commission also supervises the work of the District Review Commissions. The trials that are conducted have frequently been featured by personal power struggles and espionage, as in the case of the 1920 trial of Louis Fraina?l and denial of the right of the accused to argue his case, as in the 1933 trial of L. Beidel. Miss Beidel, who was brought to trial in Chicago, July 6, 1933, had questioned the current Stalinist line in Germany. At her trial, as she started to explain her views on Germany, she was interrupted. When she tried to pass out mimeo— graphed copies of her speech, District Agitprop Shields, serving as prose- cutor, screamed his objection. Chairman Ferguson ordered that every copy be handed up to him, telling those present, "You are forbidden to read it." The American Communist Party, then, is seen as a monolithic or- ganization featured by an arbitrary discipline. It has made every effort, especially under the leadership of William Z. Foster, to make of itself a true Leninist Party. Within this structure and discipline, we can see the traditional forms of public address, though distorted and limited to Leninist purposes. Uses of the Discussion Process It is interesting and curious to discover the extent to which the American Communist Party has made use of the forms of discussion and 5OIBudenz,_p. cit., p. 37. 5lstenographic Record of the "Trial" of Louis C. Fraina (Issued by the Central Executive Committee of the Communist Party of America, 1920). 52Jacob Spolansky, The Communist Trial in America,(New York: The Macmillan 00., 1951), p. 228. and conf ere use of them imposed by lust be fee thorough uni discipline o The so time of Pa: 42 and conference processes while arbitrarily avoiding any real or creative use of them among party members or in public forums. The restrictions imposed by the Party are premised on the necessity of discipline, which must be featured by "conscious and voluntary submission on the basis of a thorough understanding of the decisions of the Party. Only conscious 53 discipline can be truly iron discipline. The same writer (J. Peters) sets down the philosophy and limita— tions of Party discussion: Party Discussion and Freedom of Criticism The free discussion on questions of Party policy in individual Party organizations or in the Party as a whole, is the fundamental right of every Party member as a prin - cipal point of Party democracy. Only on the basis of intern- al Party democracy is it possible to develOp Bolshevik self- criticism and to strengthen Party discipline, which must be conscious and not mechanical. There is complete freedom of discussion in the Party until a majority decision has been made by the Unit or the leading committee, after which dis- cussion must cease and the decision be carried out by every organization and individual member of the Party. It is clear, however, that basic principles and decisions, such, as for example, the Program of the Communist Internation— al, cannot be questioned in the Party. We cannot imagine a discussion, for example, questioning the correctness of the leading role of the proletariat in the revolution, or the necessity for the proletarian dictatorship. We do not question the theory of the necessity for the forceful overthrow of capitalism. We do not question the correctness of the revolutionary theory of the class struggle laid down by Marx, Engels, Lenin and Stalin. We do not question the counter- revolutionary nature of Trotskyism. We do not question the political correctness of the decisions, resolutions, etc., of the Executive Committee of the C.I., of the Convention of the Party, or of the Central Committee after they are ratified. Otherwise, every undercover agent of the bourgeoisie and every sympathizer of the renegades would have an opportunity of continually raising their counter-revolutionary theories in the Units, Sections, etc., and make the members spend J. Peters, Manugl_of Organization, Communist Party of America, 1936, p. 28, time aria disrupt: among t1 (As a ma always t However, such dec be clari contrar] every Pt and how lhile thus lin liking, the Pa ofenlight enl iilliam Weins t aiderable educ Marxism editoria cussions Politicai ucate mer 43 time and energy in discussing such questions, this not only disrupting the work of the Party, but also creating confusion among the less experienced and trained elements in the Party. (As a matter of fact, this is what enemies of the Party are always trying to do in the name of "democracy.") However, that does not mean that the problems dealt with in such decisions and how best to apply these decisions are not to be clarified in the Party organizations by discussion. On the contrary, a most thorough discussion for the purpose of making every Party member understand these resolutions and decisions and how to apply them is essential for effective Party work. 54 While thus limiting the use of the discussion in the area of policy making, the Party had retained a confidence in the process in the area of enlight enlightenment or education of the members in Marxist theory. William Weinstone, writing in a 1947 Party "study guide“ assigns con— siderable educational value to the discussion process: Marxism is learned not only in classes, but also through editorials and articles in our press, and reports and dis- cussions at meetings. In fact, discussion around daily political affairs is one of the most valuable ways to ed- ucate members in Marxism. 55 Weinstone believed that this kind of discussion should go on all the time, that club, section, and functionary meetings should always discuss business and tasks on the basis of politics. To improve such discussions in connection with daily work, he had the following 54Ibid., pp. 27-28. William‘Weinstone, "Political Discussion Meetings as a Regular Feature of Party Life, " found at P. 3 of outline entitled "Guide Discussion Outline on 30th Anniversary of the Soviet Union, Nov. 1947, quoted in Volume 20, Joint Appendix, United States of America vs. Eugene Dennis, et al,, at p. 15651. (The discussion outline is printed here as a Defendants' Trial Exhibit. The Joint Appendix is printed by the Adams Press, Inc., New York City, for the United States Court of Appeals for the Second Circuit and is the Trial Record of the Dennis Trial. Subsequent references to the Trial Record will be in— dicated by a "R". and the volume and page number.) advice for 1,T to county, erclus ivel y 2. T. chosen. 3. Ta events and l The 11' centered arc versed in his level, as th to Policy de 88 rhetorici Party, napol- iaately fOur sill read a an out, Th his agreemen its provisio Immedl orguuiu.r '0 then deliver lug Out the 1 Emit)“ and [dllfid "the C of . °p1ni0n a1 44 advice for Party organizers: 1. To set aside on all levels-—from the state leadership down to county, section, and club-—at least one meeting a month devoted exclusively to political discussion. 2. To prepare reports and other material to be issued on the topic chosen. 3. To pay greater attention to reporting and discussing political events and policy which will be helpful to the clubs. The limitation of the discussion process in Party life seems to be centered around the twin functions of indoctrination of new members un— versed in Marxist theory and the implementation of policy at the tactical level, as they speak of it. This limitation precludes discussion leading to policy determination and hence greatly restricts reflective thought as rhetoricians understand it. Louis Budenz, a former officer of the Party, reports that at the National Committee meetings, held approx- imately four times a year, the chairman (usually the General Secretary) will read a report in which a line line or changes or interpretations are set out. Then each member of the Committee in turn will arise and express his agreement with the report, explaining how he will proceed to carry out its provisions. Immediately after the National Committee Meeting, the district organizer would call together the State or District committee. He would then deliver the same report to them, emphasizing the procedure for carry- ing out the policy in that district. The same procedure is found in sections and branches, with the section or branch leader leading what is called "the discussion of the report.” Budenz claims that expressions of opinion at any level which would be in Opposition to or critical of it are forbidde how the p011 of the come The fa Secretary (0 brings about. {essentially and parcel 0 feet that th b0! the line the spirit 0 BOlSheVizatj mi“ discr the declara1 Others the Party 85 Board.) Elect; during his ¢ other mewhe] decismns. That had bee had Come 1 45 are forbidden. The discussion is merely for the purpose of determining how the policy recommendations can best be executed, or of learning if any of the comrades are guilty of tendencies harmful to the Party and its line.56 The fact that no one Opposes the line as laid down by the General Secretary (or whoever represents the Party in a particular discussion) brings about an atmosphere in which self-criticism and “Bolshevization” (essentially the process of thinking in Communist terms) become part and parcel of the discussion, particularly in a crisis. The additional fact that these sessions of the Communists are used solely to state how the line can be carried out, and to detect deviations, intensifies the spirit of obedience?7 Budenz charges in as much as Se1f_critlcism and Bolshevization are the standards of Party discipline, that therefore Com- munist discussion procedure completely excludes parliamentary law and makes the declaration of the leader the decision of the gathering. Others report that the representative of the Comintern, known in the Party as the "C.I. Rep," would habitually sit in Politburo (National Board) meetings and interpret the current Communist line. Earl Browder, during his control of the Party, would customarily hear reports from the other members of the Board, then would take the floor and hand down decisions. That was all. ”No questioning, no discussing, no disputing. That had been tried before, openly and covertly, and every venturesome soul had come to a bad end."58 At the same time, we find William Z, Foster, Browder's principal rival on the National Board, claiming that be debated Browder repeatedly 56 Budenz, pp, 213., pp. 27—28. 57 Ibid., p. 115. Howe and Coser, pp; £33., p. 229. and presentec the period of to assume the raped being (1 proved that h In regard to here, the tru be true only . Change. Regs are uniformly Herbert describing so pattern of "1 leaders '0u1( call “P011 thq hub '88 no f" “ SOluti from Marxist realm, that I thou hand u Instru mater; Hally “hich actio: doSeS 46 and presented many proposals in the National Board meetings during the period of the Communist Political Association?9 It is reasonable to assume that Foster had the power to do this, and of course he es- caped being disciplined when the Duclos letter, published in France, proved that he had correctly interpreted the new Stalinist line in 1944. In regard to the conflict between Budenz's observations and Foster's claims here, the truth undoubtedly lies somewhere between the two. This would be true only of the National Board discussions during a period of policy change. Regarding lower echelon party discussions, Budenz's comments are uniformly supported by other commentators. Herbert Philbrick, a leading government witness in the Dennis trial, describing some of his early classes in the Party, reported that a pecular pattern of "free discussion" appeared. In group discussions, the cell leaders would invariably state a premise as a rigid conclusion and then call upon the participants to bring forth evidence that would support it. Truth was not sought by accumulating heterogeneous data and then groping for a solution. As he described the process, it was reverse reasoning, from Marxist—Leninist "truths" to manufactured testimony. He came to realize that the discussion process was used as a training method. I thought at first that most of the Party veterans were on hand merely to keep an eye on the new students and help the instructor weed out any who did not show promise as Communist material. But there was more to it. These Party plants grad— ually emerged as floor leaders for class discussions-—discussions which were designed to instill the first principles of Communist action into young minds which would not accept it in large, heavy doses. It had to be done with subtlety. 60 59 ' ' William Z. Foster, In Defense of the Communist Party and the Indicated leaders, (New York: New Century Publishers, 1949), p. 13. 6oHerbert A. Philbrick, I Led Three Lives, (New York: McGraw-Hill Book 00., 1952), P. 135. This ri the functions tation of pre writings of l Leninist thou which be are creative disc table-even I Ihere war is 21, 1920, be other form, 1 Mn with a r Pm? decisic never recede others "we we are right . n The air parliament“: “Stern trad] Lenin PeTSonE Under cfirtair 47 This rigid limitation of the use of the discussion process to the functions of training and discipline of members and the implemen— tation of previously determined policies finds its source in the early writings of Lenin and the doctrine of class warfare which characterizes Leninist thought. To the Communist, the world is a hostile place in which he are surrounded by enemies. This view has always prohibited creative discussions with non—Communists. Thus, to Lenin, a conference table--even when it is called a peace table—~is simply one more place where war is carried on. In a speech to the Supreme Soviet on December 21, 1920, he referred to negotiation as the continuation of war in an- other form, by another means. No Bolshevik, Lenin made clear, must ever join with a nonéBolshevik in the "free-framing" of a policy, for "we have party decisions on all the important questions of tactics, and we shall never recede from these decisions." By coming to an agreement with others "we mean enlisting them on our side, convincing them that we are right." 61 Parliamentary Procedure The attitude of the Communist regarding parliamentary groups and parliamentary procedure again reflects their sense of isolation from Western traditions of rhetoric and the conduct of public affairs. Lenin personally regarded parliaments as useful to revolutionaries under certain circumstances, but as :gsically contemptible. "Parli— amentarism is historically obsolete." However, following events in Europe, principally Germany, during 1919 and 1920, Lenin was forced 61V. I. Lenin, Selected Works, (New York: International Publishers, 1943), W, p. 201. 92 V e . Ibidl, Vol. X, p. 97. to give up t1 out to his ft This he book, "WI of 1920 and 8' January, 1921 no main erro. and 2) the urn Lenin's the Communist. Iith this decj 64 secondary. 11 failure of a ] PlirlianentariE form and had 6 desirable fora Ierism in ONE luerican Pam was foreign SF 1he Party had as ”Freesed I idea that elec Emmy as a 48 to give up the illusion of the imminent world revolution and to point out to his followers the necessity to c00perate with parliamentary groups. This necessitated declaring war on the "ultra-left." In his little book, "Left WingflVCommunism: An Infantile Disorder, written in the spring of 1920 and appearing in an English translation in the United States in January, 1921, Lenin hit out ruthlessly against what he then considered two main errors: 1) the refusal to participate in "bourgeois parliaments” and 2) the unwillingness to work in "reactionary trade unions."63 Lenin's decision here is believed by Draper and other students of the Communist movement to be the most important since Marx. "Compared with this decision, all other landmarks of the Communist movement become secondary.g4 Lenin had been forced to these statements due to the failure of a 1919 Comintern "circular letter" on the same subject of parliamentarism. This document was in a question-and-answer "catechism” form and had argued that it was wrong to think of parliamentarian as a desirable form of state organization, but was right to utilize parliamen— tarism in order to overthrow or destroy parliaments?5 At that time, the American Party consisted of a membership of 10,000-12,000, 90% of which was foreign speaking. There was no daily Party newspaper in English, The Party had just suffered the Palmer raids. Members saw themselves as oppressed revolutionaries and were frankly romantic about it. The idea that elected Communist officeholders might think of parliamentary activity as a means of improving the condition of the masses was still 63V. I. Lenin, "Left Wing" Communism: An Infantile Disorder, 1920, quoted in Theodore Draper, The Roots of American Communism, (New York: The Viking Press, 1957), p. 248. 64Draper, ibid., p. 249." 65 . ' The Communist, March 1, 1920,p. 4, quoted in Draper, ibid., p. 241. a strange am In the emphasis on ' atrative meas bourgeois mar, organization. For thi the secret cu testifies the mists in ma: drilled in the organization I} attained. Bu hidden 'ithin The basi in “my life, of the Party ‘ it the FOurth between Charl, fectively Com Wity mums: L BQIShevik. I1 66 Th 67% 68Bud°nz ‘ ' f %e (\‘e; Y 49 a strange and terrible notion. In the 1921 Party Constitution, the leadership put special emphasis on the duty of Communist representatives to propose "demon- strative measures, not for the purpose of having them passed by the bourgeois majority, but for the purpose of propaganda, agitation, and organization."66 For this purpose, parliamentary law was sometimes included in the secret curriculum of the National Training School. Louis Budenz testifies that this was solely for the purpose of its use by the Com- munists in mass organizations. This selected group of students was drilled in the methods by which delays could be obtained in mass organization meetings, and confusion and control of these meetings attained. Budenz also argues here that parliamentary law was for— bidden within the Party itself.67 The basic elements of parliamentary tactics were, however, present in Party life, and available to the leadership. The endless factions of the Party would often ”caucus” separately at the conventions.68 At the Fourth National Convention in 1925, a power struggle deve10ped between Charles Ruthenberg and William Z. Foster. The Comintern ef- fectively controlled the outcome of this struggle by appointing a parity commission with an "impartial" chairman, Sergei Gusev, an old Bolshevik. It is also interesting to note that Draper and other 66 . . ‘ v _ The Communist (c.P.of,A.), July, 1921, p. 19. 67 ' Budenz,._gu cit;; p. 117. 68 . . See, for example, Theodore Draper, American Communism and_Soviet 13323;, (New York:. The Viking Press, 1960), pp. 90—95 and 310—311.. rriters foum the inportan" eistenctly kvh of parliament A disti professional the Leninist and file memb ship debated the rank and In desc Philbrick com] convention. i 0f the comren. lution of tha‘ Principlea am in Wilden, Ma: stage. These cards fUrnisho pm rO‘t-ated : rith equal gm as speakers. volt led bV’ Do It coull \ oo Philbr 50 writers found a main source of Party material to be the minutes of the important committees of the Party, which were apparently con- sistenctly kept and which again show some reliance qp the methods of parliamentary procedure. A distinction that can be drawn here is that between the professional cadre (the military term "cadre" still represents the Leninist ideal of the professional revolutionary) and the rank and file member. While the party organizers and the emergent leader- ship debated and brought into play sophisticated parliamentary tactics, the rank and file member was much more severely limited. In describing the New England District Convention of 1945, Herbert Philbrick compares it to a newspaper office rather than a political convention. Everything was set up in advance. The principal function of the convention was to ratify the National Committee's draft reso- lution of that year, calling for an immediate return to Marxist-Leninist principles and reconstitution of the Party. At this convention, held in Malden, Massachusetts, a public address system was used from a large stage. Those who wished to speak sent their names to the chairman on cards furnished for the purpose. At the rostrum, the chairman—-the post rotated for the various sessions——grave1y sorted out the cards and with equal gravity “called upon" those who had been previously approved as speakers. Philbrick credited the card system with controlling a re- volt led by Don Tormey of the CIO .Electrical Workers?9 It could be concluded that basic parliamentary rights and tactics 69 Philbrick, 22. cit., pp. 152-154. are availablo those members trained thorr purpose of op situations. It may featured by t the material comunication based entirel km in his career, "Since 1 develop, IOVemem idGOIOg} Created torn by 81mm-“ in any 7; Strength One gin 0f the to the n0n‘pr0 them to Bide ' 51 are available only to the professional cadre of the Party, but that those members showing aptitude for mass organizational work will be trained thoroughly in parliamentary procedure and tactics for the purpose of operating at a maximum advantage in non—Party parliamentary situations. Argumentation and Debate It may be set down first that Communist rhetoric generally is featured by the construction of arbitrary disjunctive premises wherein the material fallacy of reification is evident and by a two—level communication model. The formal argumentation of Marxism—Leninism is based entirely on "either-or” thinking. Argumentation — One can note in Marx's writing his predilection to either-or thinking. In Lenin, the trait is more developed. Early in his career, he wrote: "Since there can be no talk of an independent ideology being developed by the masses of workers in the process of their movement, the only choice is: either bourgeois or socialist ideology. There is no middle course (for humanity has not created a 'third' ideology, and, moreover, in a society torn by class antagonisms there can never be a non-class or above-class ideology). Hence, to belittle socialist ideology in any way, to deviate from it in the slightest degree means strengthening bourgeois ideology."70 One sin of the class war, Lenin indicated, would be "to demonstrate to the non-proletarian toiling strata . . . that it is better for them to side with the dictatorship of the proletariat than with the 71 dictatorship of the bourgeoisie, and that no third course exists." 70 V. 1. Lenin, Selected~Works, Vol. II, p.-68. Q ”Ibis” Vol. VI, sad" - The f0 since Lenin They speak 0 Budenz ident application Czarist peri slogans and in one sense understandi pret" it in An exa "Lenin's Teac lSoviet subij it might he s tried in this use to Persua teach the v10 the "real" (is readers from almost got hit "filled that ! can" thev we \ 72 BUden. ’3 I P0 \l\lt‘ 52 The formal mode of reified argumentation that has been developed since Lenin is constantly described by Communists as “scientific." They speak of Dialectical Materialism and Scientific Socialism. Budenz identifies this involved "scientific” argumentation as one application of the Aesopian language developed by Lenin during the Czarist period and employed by Communists ever since. By this method slogans and arguments which are to be used for popular consumption in one sense receive another and revolutionary content for the understanding of the party members who have been trained to "inter- pret" it in true Marxist-Leninist terms.72 An example would be Alexander Bittelman's article entitled "Lenin's Teaching and the Liberation of Humanity."73 Bittelman was a Soviet subject and served for a period as chief theoretician and, it might be said, as chief rhetorician, of the American Party. He tried in this article to coin arguments which the Communists could use to persuade the American peeple that Marxism—Leninism does‘ggt teach the violent overthrow of government. While pointing out that the "real" definition of Marxism-Leninism is assured to the comrade— readers from "study and discussion,” Budenz points out that Bittelman almost got himself into "revisionism" in this article. Bittelman had argued that 1) the American Party leaders were being persecuted ”be- cause they were acientists and that 2) the science of Marxism-Leninism 72Budenz, 92. cit., p. 49. Political Affairs, January, 1952. use so capa' speaceful that the de' with its _s_u_l Intra- dere10ped a never been a factional f: the America: debates. Ce The 19 'as convened on August 30 “anifesto ad One diSSeden bMore, The ranting to f the Reed~Git adjourned to later "med the Communis 53 was so capable of development that it may some day stand on the idea of a peaceful transition to socialism. Bittelman avoids this by stressing that the development of Marxism—Leninism "must always be in accordance with its substance, "(i.e., Lenin's either-or proposition). Intra-Party Debate - While the American Communist Party has not deve10ped a tradition of public platform debate, the members have never been at a loss for argument in their constant intra-Party factional fights. It is fair to suggest that the recorded history of the American Party is essentially a history of these persistent factional debates. Certainly the Party was born in the process of debate. The 1919 Emergency Convention of the American Socialist Party was convened at Machinists' Hall, 113 South Ashland Blvd., Chicago, on August 30. Essentially it was in response to the Left Wing Manifesto adopted by Left Socialists in New York in June of that year. One dissedent group had formed the Communist Propaganda League the year before. The convention at once became badly split, the left wing wanting to form a Communist Party. The convention refused to seat the Reed—Gitlow group and after a now-famous fist fight, this group adjourned to the billiard room on another floor of the building. They later moved to the I.W.W. Hall, 129 Throop Street, and there founded the Communist Labor Party on August 31. Another group, which included the Russian Federation, had moved to Smolny Hall, 1221 Blue Island Ave., where they formed the Communist Party of America on September 1. Charles Ruthenberg became the leader of this group, but the Russian language federation believed that they had a unique insight into Communist revolutionary theory because they were Russian. Many could not 8 America. A1 overtures to In Apr States with us arranged lay of that H envelope wit} Spolansky, on despite the l of the term ' the new unifp Nations, Whit °f capitaiis dammed wit 54 could not speak English. Some thought revolution was imminent in America. Almost all of them were hard liners and resisted the clumsy overtures toward unity made by the Communist Labor Party. In April of 1920, the Soviets sent a special envoy to the United States with orders to "achieve unity or else!"74 A unity convention was arranged in a forest preserve near River Forest, Illinois during May of that year. Each delegate received his travel orders in an envelope with the Comintern seal on it! The government agent, Jacob Spolansky, was able to infiltrate the area and witness the debates, despite the Party's posting some 25 guards. Issues included the use of the term "by armed force" in the Constitution and other statements of the new unified Party, the I.W.W., the A.F. of L., and the League of Nations, which was denounced as an "open enemy” and a "futile instrument of capitalism." Stubborn members were taken aside by small groups and harangued with pleas and appeals to change their stand. The convention went on for seven days and nights, with all the current leadership, (Lovestone, Bedacht, Ruthenberg) participating. About two a.m. on the final day, the Communist Party members, had settled their differences, but the Communist Labor Party was still going strong in its own caucus. The C.P. members came over singing the ”Inter- nationale" and danced in a circle around the holdouts. The C.I.P. debated above this din, but finally gave in, and everyone embraced. They adopted a manifesto calling for revolution. But real unity eluded them. Factional debate continued at subsequent secret conventions at Bridgeman, Michigan, and Woodstock, New York. 4 _ 1:. f" ,: ts ' '. .7. _» , .- 7 Spolansky, 02, cit., p. 17. The pa of 1922. Tl up of Burupe The Cominte r This became up the [hits Moscow heari njority. T Itjority. The or Third Intern: scene of some °f the time o Pm)” insu me “P Under' delegation. " tbe Rugsian a bottle '83 0r the coupe“ debates in It 3! l ulOpsy_t 55 The persistent intra—Party fight was taken to Moscow in March of 1922. The Comintern had appointed an “American Commission" made up of European Bolsheviks. The issue of that year was the "Toilers." The Comintern had ordered the Americans to set up a legal organization. This became the American Workers Party. The Left opposition had set up the United Toilers of America. This group lost their case in the Moscow hearings, though they claimed that they represented the American majority. The Comintern, it seemed, had no interest in a deviationist majority. The original order for formal unity had been handed down at the Third International, June-July, 1921. This meeting was itself the scene of some of the debating that featured early Communism. Most of the time was devoted to an autopsy of the defeat of the German Party's insurrection of March, 1921. However, the American issue came up under the "Theses on Tactics of the Bureau of the Russian delegation." .Robert Minor, the American spokesman, humbly accepted the Russian statements except for "small technical points" and the battle was on. The prolonged debate that developed on the floor of the congress (and Theodore Draper reminds us that there were great debates in those years) was extraordinarily ironic. Draper refers to it as a "topsy—turvy debate." The radicals among the Westerners were im- pressed with the fact that a small Bolshevik party in Russia had succeeded and the large Social Democratic parties in the West had failed to win power. The Russians replied that conditions in the West were different. The American delegation was badly split over these issues. Some members were greatly influenced by personal, late-at—night interviews with Lenin. the pe group. lseric bone, heated marked positil the pa: James ( fellow: M‘H'HgflH-‘flll—OH 56 The personal power of William Haywood, Hourwich of the foreign language 75 group, and others was broken at this congress. Another bitter debate occured during 1929. The then current American leader, Jay Lovestone, whose power had been challenged at home, took his case to Moscow and confronted Stalin. The debate was heated and interesting. It is perhaps unnecessary to report that it marked the downfall of Jay Lovestone.76 On the rare occasions when the American Communist defended his position in public debate, he felt free to express his isolation from the parliamentary tradition. Thus in a widely publicized debate with James O'Neal, a Socialist Party leader, Robert Minor developed the following refutation: ‘Now he (O'Neal) gave an illustration about how (Louis) Fraina advocated the rights of free speech until he learned from Moscow that was a petty-bourgeois thing to say. Let me set you right. If a man is a moralist of the theological type, he will do things that he thinks are idealistic. But if he is a modern materialistic revol- utionary he will do the things not that are metaphysically moral, but the things that work, and he will take a position for free speech when it is the bourgeois dictatorship that is on top, and he will take a position against free speech when it is the workers that are on top. (Great applause) You see, that is a little dialectics. (Hearty applause) 77 In 1935 an effort was made toward unity between the Communist Party and the Socialist Party. In the fall of that year, Earl Browder and Norman Thomas conducted a series of debates, the major one held 5 Theodore Draper, The Roots of American Communism, 22. cit., pp. 275-280. English translations of the Protokoll de III Kongresses are in The Communist, August, 1921, and in V. I. Lenin, Selected Works, 23. cit., pp. 279-288. Theodore Draper, American Communism and Soviet Russia, op. cit., 77 James O'Neal vs. Robert Minor (pamphlet), New York, 1921, quoted in.Howe and Coser, op. cit., p. 85. in Madison appealed f0 while favor sharp jabs . elections t In re. great debate Herbert Phil Hood was sej convention 1 Position 1m contrived a Browder dis! during the a We car debate is vj 1’? deceit at by the "more: as Reed and The Party's t“ 1“” quite 5nd Rutheube ”thin 57 in Madison Square Garden before an audience of 20,000. Browder appealed for unity with a calculated mildness. However, Thomas, while favoring limited cooperation toward specific ends, took some sharp jabs at the proposed Popular Front. Disagreement over the 1936 elections terminated the fellowship. In regard to the 1945 shift in the party structure and line, a great debate was represented to the rank and file by the leadership. Herbert Philbrick reports that in District One (New England), Otis Hood was selected to take the pro—Browder position in the District convention debates and was to be given an Opportunity to switch his position later, clearing himself by confession. Thus the Party contrived a show of democratic debate in connection with the Foster- Browder dispute as a concession to new members who joined the Party during the Browder era.78 We can see, then, that the American Communist Party's record in debate is virtually limited to bitter intra-party struggles marked by deceit and aggggentum_gg hominem. The picture is relieved only by the momentary billiance of a few last-ditch recalcitrants such as Reed and Fraina on the floor of early Comintern Congresses. The Party's participation in public debate in this country would seem to be quite limited. One situation where Communists do argue is in the Courtroom. In November of 1919 five Communist leaders, including Gitlow andeuthenberg, were indicted under the New York State criminal 7%hi1h_riek,_2p. cit., p. 144. 4 . 58 anarchy statutes. Clarence Darrow appeared for the defense. Judge Barstow Weeks, presiding, held firm and settled convictions regarding Communists and their ilk. Gitlow took the posaion that the case was nothing but an act of political persecution and therefore refused to testify. He insisted on making a summation speech on his own behalf in which he denounced his prosecutors, condemned capitalism, and ex- tolled the Russian Revolution. Repeatedly interrupted and finally cut off by Judge Weeks, Gitlow never finished his oration. Darrow put up quite a legal battle, claiming that the indictment was a violation of free speech, Judge Weeks effectively restricted the range of issues in 79 Darrow's case. Verdict: guilty, Nine months after the Gitlow trial, Charles Ruthenberg and Issac Ferguson~~the latter a transitory but quite gifted leader of early Communism——came to trial, again before Judge Weeks, who had in the Interim sentenced still another Communist leader, Harry Winitsky, to the standard five to ten years under the New York statute. Ferguson, arguing for both defendants, proved himself an able lawyer, particularly as a kind of legal "straight man” for Ruthenberg, The Communists had now decided that it was pointless to deny the jurisdiction of the court as Gitlow had tried to do, and that if they could not expect anything but conviction, they might as well use the trial for prOpaganda. For days, as Ferguson fed him questions, Ruthenberg explained the Communist position on everything from general strikes to the Ru531an Revolution. Though hardly an intellectual titan, Ruthenberg was a cool and tough battler. 1.....- -« —_ -.__ _._ —— 79Howe and Coser, 2p. gij., pp. 55w56. —u—a-_-.— —: u...“ - C he an kn to pa Fe Moms of three we. and Fergl nounced L not on LI reason 11 Olners ()1 lies 1W)! Par for the d aomhs be prDSeCutl Mbershi “019mL 0 and drama b." lbe SI p"’rsfinel the State the SeCOr \ h-u‘ .— .1 I ()1 CO Calmly, with an impudence that had its attractiveness, he denied membership in the underground Communist Party, and when District Attorney Rorke asked him whether he know such leading Communists as Damon, Ruthenberg feigned total ignorance-~though, as it happened, Damon was Ruthenberg's party name. 80 Ferguson's summation speech was one of the most able presenta- tions of the Communist position heard up to that date. However, after three weeks of testimony the jury took only two hours to find Ruthenberg and Ferguson guilty, Before sentence was passed, Ferguson openly de- nounced Judge Weeks, Later the decision was reversed by the higher courts, not on the major constitutional issues involved, but for the technical reason that the State had not proved its claim that the defendants were owners of the Revolutionary Age when it published the Left Wing Manifestoo Meanwhile a mass trial of twenty leading members of the Communist Labor Party was being held in Chicago, Clarence Darrow again appeared for the defense. The trial lasted from June until August, 1920, two months being taken up with the selection of a jury. As in New York, the prosecution rested upon the theory that merely to prove the defendants' membership in the C,L P. was sufficient ev1dence that they advocated the violent overthrow of the government. This trial became more colorful and dramatic than the New York prosecutions, The evidence introduced by the State included a red flag, the text of the song “Red Flag,” and personal correspondence of the defendants, Most damaging of all, so the State's case argued, was a circular announcing a picnic to celebrate the second anniversary of the Russxan Revolution, upon the introduction «.....-‘fl—p—‘n , - --—— —-— ~—w—M———‘—-t of lthh ‘My God, The Comm victions. The court sho As can lin Par “P HS THF The tacti as in man this phil that me: Views. By bad apparc York, "is entitled | The pamph- \ 81 \- R1] “5' 16~17 60 of which State's Attorney Barnhart tearfully cried out to the jury, "My God, can it be?" The State proved that it was. Verdict: guilty. The Communists appealed to the public for a mass protest of these con— victions, but the public failed to respond. The Party deve10ped the belief that any members brought into court should totally refuse to speak up: As to the idea that we can make propaganda through the court room it is impossible. . . Bear in mind the appal— ling danger of betraying your comrades, betraying the Party-unconsciously, against your will, but Opening them up to the attacks of our enemies just the same, — IF YOU ANSWER ANY QUESTIONS, - and you will resolve NOT TO ANSWER THEM . . . 81 The tactics of Ruthenberg and Ferguson at their trial indicate that, as in many other respects, experience forced the Communists to abandon this philosOphy. After a time it became conventional party doctrine that arrested Communists should use the courts as a forum for their views. By 1930, the latter phiIOSOphy of using the courts as a forum had apparently become official. The Labor Defender, published in New York, was distributing on a mass basis, at five cents a copy, a pamphlet entitled Under Arrest! How to Defend Yourself in Court: What to Do When Arrested and Questioned! The pamphlet was drawn up by the International Labor Defense, with a Foreword written by Helene Stasova, then International Secretary of the Rules for Underground Party Work, "The Communist International1 III, N08. 16-17 (1921), quoted in Howe and Coser, ibid., p. 60. ’ ‘ " "’ ‘ . up. 4 I,L.D. The defendants SUbSEt Party faithl leak and 311 be made int. the trial uh I Comunist it as well as 1' “1119 the ”s another attq flising driv alleging the in American Yet it process in t "t“rneys to "Presente d |an “89 in Party ha d em caused by th do'n a decis \ 82 J.£ 1953), pp. 25 61 I.L.D. The main advice for the court room in this pamphlet is for defendants to emphasize the "Class character" of the trial. Subsequent Communist literature has maintained this theme. The Party faithful have been told to try to make "bourgeois" courts look weak and silly. If members are brought to trial, the courtroom should be made into a sounding board for communism. "The aim should be to turn the trial into an open tribunal for the spreading and pr0pagating of Communist ideas and aims." "The class struggle goes on in the courtroom as well as it does on the picket line, in the shops, and in the mines."82 While the "struggle" is going on in the courtroom, the Party coordinates another attack outside, consisting of letter—writing campaigns, fund- raising drives, propaganda leaflets, and other types of literature, all alleging that the communists on trial and being "framed" and "persecuted" in American courts. Yet it would seem indicated that the Party respects the Judicial process in this country enough to retain experienced and successful trial attorneys to represent its position before the law. Clarence Darrow had represented indicted members twice. In the bitter and exhausting Schneider- man case in 1945, Wendell Wilkie represented the defendant. After the Party had employed all of the tactics mentioned above, and after a delay caused by the death of an exhausted trial judge, the Supreme Court handed down a decision favorable to the position of the Party. Showing no aversion 82 J. Edgar Hoover, Masters of Deceit, (New York: Henry Holt and C0. ,- ° 1958), pp. 285-286 to arguin ouch disp establish It in courtr activitie declined sequently courtroom The AI‘Brican 1 isolation t0 Europe. Predominax “ample, 1 Until the ”Fitment t A: the Soc rhetorical The labor “We ”Hermes. tradition \ 83 hi 62 to arguing from legal precedent, William Z. Foster has claimed that the much disputed 1945 Party convention worked under the conviction of legality established in the Schneiderman case.83 It could be said, then, that the Party had pursued a complete shift in courtroom tactics. Finding it impossible to defend certain of its activities under America's sedition and anarchy statutea,the Party first declined to debate the position before American juries at all, and sub- sequently adapted a policy of aggressive propaganda campaigns in the courtroom combined with attacks on the judicial process itself. Public Speaking The "Transmission Belt" Concept - The early history of the American socialist and radical is one of political and rhetorical isolation from the principal arenas of American life. A barrier peculiar to European radicalism prevented American socialism from working with predominantly middle—class liberal or progressive movements. Thus, for example, the American socialists uncompromisingly opposed a Labor party until the early 1920's. This attitude was carried over into the communist movement by the Left Wing, which thereby doomed itself to political isolation. As the Socialists improved their rhetorical position and deve10ped some rhetorical traditions, the Communists maintained a hearty contempt for them. The Communists believed that everything wrong with the Socialist and labor movements was to be ascribed to middle—class or petty-bourgeois in— fluences. Lawyers, ministers, dentists, doctors, and teachers were the traditional butts of Left Wing oratory-even if the orator himself was a 3 William Z. Poster,‘_p. cit., p. 15. 63 lawyer, minister, dentist, doctor, or teacher. Theodore Draper sees this situation as another case of doctrine triumphing over reality. Victor L. Berger, the "American Bernstein," was a former school teacher, while the orthodox Marxist, Louis B. Boudin, was a lawyer. DeLeon was a college teacher. Yet the teachers, accountants, and other professionals who helped to form the Communist Party remained furiously contemptuous of the teachers, accountants, and other professionals who remained in the Socialist Party,84 Furthermore, major Socialist figures, such as Morris Hillquist and Victor Berger, owed their influence over the rank and file members of their party to platform eloquence or literary ability rather than to status in the organization hierarchy as in the Communist Party. The Communists considered themselves full-time 85 revolutionaries and derided Socialists who held other jobs. In 1922, the Comintern ordered an end to this rhetorical and political isolation. Along with the order for a united-front policy, the International sent out a demand to all Communist parties that wherever possible the parties were to operate openly and legally, and participate in parliamentary activities?6 Many.American Communists grumbled, but complied. The American Labor Alliance was the first of many united front efforts to grow out of this policy. The rhetorical efforts that came out of the new policy were centered on a concept which the Communists referred to as the "trans- mission belt." Apparently the Party did not see the general public Theodore Draper, The Roots of American Communism, op. cit., p. 30. 5 Draper,‘Agericgn Communism and Soviet Russia, 22. cit., p. 198. 86Howe and Coser, _p_. cit., p. 89. as a single centered arc to penetrate oal comunie for broadeni feature of C lens of Leni use organiz sense that B cribed the A American Lea belts,"88 The st.- W the effo interrupted, reformista a: the offectim son, a Natim Dennis trial XOYmeer, 19: as a single popular audience. All of their thinking seemed to be centered around organized groups. All groups that the Party sought to penetrate were termed by them as "mass organizations, and by event— ual communist control they were to be made into "transmission belts" for broadening the influence of the Party. In his basic work, Eggggge ‘tiggg g: Leninism, Stalin argued that this system must be an essential feature of Communist efforts?7 He reiterated in his later book, Prob- lems of Leninism, the necessity for "belts" and "levers" composed of mass organizations which the vanguard must penetrate. It was in this sense that Earl Browder, then General Secretary of the Party, des- cribed the American League Against War and Fascism and the subsequent American League For Peace and Democracy as "Communist transmission belts."88 The stated of infiltrating other organizations included block- ing the efforts of non-Communist members. "United front means un- interrupted, patient, convincing work to destroy the influence of reformists and the bourgeoisie}39 The principal aim, however, is the affecting of public opinion through the organization. John William- son, a National Party Board member and one of the defendants in the Dennis trial, writing in the Party journal Political Affairs of November, 1950, sets out the essential features of this system. 87 J.V. Stalin, Foundations 2! Leninism, (New York: Marxist Library, International. 8 gBudenz, gp,jgit., p. 36. 89 J. Peters,.gp. cit., p. 21. The individ with which i he can base grievances u Comunist i) type of dlSl "imediate l Kremlin want referred to concept rep} Ptfpagtanda 1 t0 this when "Clone conta helps to pro Iilitant '0, ration can ' Henry "he“ in te hat partv 1 Pculiar ins messed thr Ind I0“'t‘ment 90J Budenz Obn ’ 0p. 91 ‘ "Poll Eugen 65 6 The individual who is infiltrating, Williamson writes, and the cell with which he works, must look around for "immediate needs" upon which he can base agitation. This is to say that he must seek out those grievances or arguments which will appeal to those around him as non- Communist in character. As soon as he has gained a foothold by this type of discussion and agitation, he is obliged to link up these ”immediate needs" with the line of the Party, with those things the Kremlin wants done in.America. This type of rhetorical effort is referred to in the Party as propaganda, and the "immediate needs" concept represents the essential distinction in the Party's.Agitation— Porpaganda rhetorical scheme. Next, the Party rhetorician is to give to this whole operation a larger organisational form by establishing "close contact" with "progressives." Williamson concludes that this helps to protect the Party infiltrator, and brings forward "new militant workers," behind which the Party members in the Organi- zation can work.90 , 91 Henry and Bonaro Overstreet analyse the Agitation-Propaganda scheme in terms of the type of audiences that are sought. They argue that Party leaders in.American, applying Comintern directives to the peculiar institutions and conditions of our country, have continually stressed three points. The first is that Communists must learn to think "in terms of influencing major national organizations, trends, 92 and movements." The second is that, in every way possible, they 9oJohn'Williamson, PoliticgigAffairs, November, 1950, quoted in Budenz, op. cit., pp. 155—157. 91Harry and Bonaro Overstreet, gp. cit., pp. 160-161. 92Eugene Dennis, "Peace-~The Supreme and Over—Riding Issue, "Political Affairs (April, 1951), p. 7. 66 must work to splinter America into mutually antagonistic special— interest or special-viewpoint groups and then make a target of each, in terms of that group's own limited welfare, not the common welfare. The third is that they must learn to manipulate "mass thinking:" "It is insufficient to be able to proclaim the line of the Party in general. To lead concretely one must be able to discern the mood of the masses and merge it with the general line." The Overstreets would seem to argue then, two standard approaches of Communist rhetoric. One is to attempt to reach great number of peOple, regardless of their identities, occupations, etc. The second approach calls for the population to be subdivided into "types" and designing the appeal to fit the interests of each. An example of the first approach would be the general "Peace" offensives conducted by the Party. Examples of the second approach would be messages and themes directed specifically to women, youth groups, or religious groups. J. Edgar Hoover also finds evidence of the individual approach to mass agitation, the concept of "talking to people in terms of who they are." "Agitation must be carried on in specialised fields: Among women, among youth, among veterans, among racial and nationality groups, farmers, trade unions. That's the responsibility of the Party 94 95 commissions." Gabriel Almond found in his study of Communist rhetoric that virtually all of his respondents had thought of the Party in terms that brought together its public agitational themes: a movement gaclaude Lightf00t9 "Leadership Quality and the Draft—Program Perspectives," Political Affairg; (June, 1954), p. 38. 94Hoover,_c_>p. cit., p. 186. Gabriel A. Almond, The Appeals of ngmunigg,(Princeton: Princeton University Press, 1954.) against ias Still other general hum Party nembe agitational regarding ti Comnniat 1 i! said in level of Co Comonist n This h “"1ng the the Party do Budenz teati at Camp Beat “”8319 pur laterial for of “P9901193, concealed co. Prilately by M Mtaco» an \ 96 Bude 67 against fascism, imperialism, and various types of discrimination. Still others saw it as a means of attaining trade—union objectives or general humanitarian goals. This would indicate that a majority of Party members are initially attracted to the Party by the public agitational themes. .Almond also sets forth an interesting hypotnesis regarding the difference between the intra-Party communication of the Communist leadership and the mass communication of the Party. "What ig said in the inner media of the movement and.ggt.ggig at the mass level of Communist communication is what has to be learned by the Communist neophyte if he is to move into the inner party." This hypothesis also suggests an interesting conclusion con- cerning the education of the Communist Orator. There is evidence that the Party does devote some attention to the training of speakers. Louis Budenz testified that at the secret National Training School, conducted at Camp Beacon, New York, and elsewhere, a study of English for class struggle purposes, such as the writing of leaflets, preparation of material for Communist and "progressive" publications, and the organising of speeches, was included in the curriculum. Budenz notes that the concealed Communist operating in the mass organisation, though directed privately by Party runctionaries and the uniform Communist language of Moscow and the secret training schools, is expected to "translate" 96 this peculiar method of expression into popular terminology. 96 Budenz, gp.‘git., pp. 116-117. Eh'idc tion avails ted rhetori Stockholm { in speaking 92h! at National Bc' brochure at each speak: flag shoulc shell "am should be 1 for signatl alJdieuca to Mime: 'i‘h this 1 Olldiences . the econom. °* neighbo; Manda" f. The Mona l! a three Policy, th. nth “all 1 out! me be careful 68 Evidence indicates that whatever the extent of rhetorical instruc- tion available to the Party member, it produces some rather sophistica- ted rhetoricians. During a 1959 Peace Appeal campaign supporting the Stockholm peace movement, special efforts were made to train members in speaking. The principal text used was a brochure entitled flint; 93 1131 _T_o_0rganize finely-Lil Meeti s, published in June, 1950, by the National Education Department of the American Communist Party. This brochure advised that several speakers should be used at a meeting-- each speaker being trained to get certain points across. An.American flag should be displayed and, to draw the crowd, someone might ring a bell "announcing the meeting like a Town Crier." Party members should be ready to circulate the petition after the speaker calls for signatures. Other members should be planted throughout the audience to start the question period. Mimaographed guide; 32 Speakers were also issued in connection with this effort. These Guides stressed two points regarding the audiences to be addressed. First, the speaker must know in detail the economic, racial, social, and ideological make-up of the shop or neighborhood and must tie up the "peace appeal" with "immediate demands" favoring the special interests or biases of the audience. The second point was that the American government must be represented as a threat to world peace because it was enacting, through its foreign policy, the will of an "imperialist power-group"--commonly identified with Wall Street. .Americans in general, however, the guides pointed out, were not to be charged with imperialist ambitions. They were to be carefully disengaged from their own government and merged with 69 "the world's peace-loving peoples."97 There is also evidence to suggest that the national leadership of the Party includes men widely experienced in speechmaking. Jacob Spolansky has characterized Eugene Dennis as one of the "prize orators of the Party," given to "lectures and tirades on every occasion, including the national plenum,"98 Benjamin J. Davis, a graduate of the Harvard Law School and a New York City Councilman, represents, in the tradition of Issac Ferguson, the Party's forensic speakers. He served as a defense counsel in the historic Herndon and Scottsboro cases and insisted on the right of pleading his own cause in the Dennis trial. At the 1944 national Party convention, which saw the Party accept the Browder policy of converting the Party into a "political association," Earl Browder, at the pinnacle of his career, gave a 90—minutes address praising the Teheran agreements. He was honored with an ovation lasting four minutes. Rhetorical Concepts In reviewing what would seem to be the rhetorical concepts held by the Communist Party of the United States of America, certain conclusions may be drawn within the context of classical rhetorical concepts. First, the Invention and Disposition of’Communist argument would seem to be constructed almost entirely from the classical Com- munist literature, the literature of Marxism-Leninism. Second, the canon of style in a Communist scheme of rhetoric is structured, and 7 Harry and Bonaro Overstreet, pp, cit., pp. 163-164. 98 Spolansky, _p. cit., p. 216. 70 distorted, by the practice of using ”Aesopian" language. No review of the Party's scheme of rhetoric would be complete without consider— ing the ends to which the Party speak, and the degree to which they subscribe, or fail to subscribe, to the Western traditions of free speech. The preamble of the 1945 Party Constitution flatly declares that the Party" bases itself on . . .Marxism-Leninism? The Party journal, Political Affairs, announces itself to be a "magazine devoted to the theory and practice of Marxism—Leninism." In 1948, this journal proudly declared, "The Communist Manifesto Lives!" We are told here that the Manifesto is still a ”manual of procedure," a "handbook for 99 every classuconacious worker." Lenin himself has testified as to the origin of Aesopian language, which has always characterised Communist rhetoric. During the pre- revolutionary period, he writes, he felt compelled to write . . .with an eye to the tsarist censorship. Hence, I was not only forced to confine myself strictly to an exclusively theoretical, mainly economic analysis of facts, but to formulate the few necessary observations on politics with extreme caution, by hints, in that Aesopian language — in that cursed Aesopian language-—to which tsarism compelled all revolutionaries to have recourse, whenever they took up their pens to write a "legal" work. 100 This statement is also found in the Preface of the Russian edition of Lenin's Imperialism, The Highest Stage of Capitalism. A footnote to the English translation of this work explains that the term was taken from the fable writer Aesop, a slave who devised this ellusive and roundabout style to deride his masters. 99 Editorial, Political Affairs, (February, 1948), p. 110. ,loov; I. Lenin, in History of the Communist Partygof the Soviet Union (Bolsheviks), quoted in Hoover, op. cit., p. 94. 71 Louis Budenz has testified that the practice of using Aesopian language has-been developed further and is today a somewhat sophis- ticated system of communicating the revolutionary message of the Party in a legal context. Another factor which influences Communist language is the Party's view of the world as a battleground of the "Class War." Dr. Frederick Schwars, Executive Director of the Christian Anti-Communist Crusade, testified that “every basic term that we use has been redefined by the Communists in terms of the Class War.'1'01 Budenz testifies that because of their devotion to the concept of "class war," the Com- munists apply military methods and language to day-to-day activity. Hence, Communist literature and speechmaking will be replete with such terms as "cadre," "tactics," "assault," and "force." The Party is also militantly devoted to exposing all forms of the doctrine of "class peace" emanating from reformist or bourgeoise sources. Hence, one finds no conciliatory remarks in Communist speaking, except where a "tactical" decision has called for it. Invective is much more characteristic of the Communist orator. The Overstreets remind us that Marx and Engels were themselves greatly given to invective and name calling, showing no mercy to enemiew and "deviationists."102 In considering the ends to which the Communist orator speaks, one cannot be limited by the traditional ends of speaking that would be implied in any given speaking situation. Herbert Philbrick argues that Communist candidates enter politics, not to win, but to use the 101 Dr. Frederick C. Schwarz, oral testimony before the staff of the United States House Unquerican Activities Committee, Washington, D.C., Printed Leaflet, May 29, 1957. 102Harry and Bonaro Overstreet, 32. cit., pp. 34—35. campaign 3% could sharp efforts war to stir up u may peo in this eff (New Euglan the Deuocra The remark Progressive In atp l regarding t1 " oPPOsed t "“51 effor indicate th. b“. Incl 0 '“Ppoeed by is created, "W lava} 1h'ontim William thl‘ \ 72 campaign as a "vast propaganda sounding board through which the Party could sharpen the contradictions in the class struggle." Special efforts were made in the 1946 Congressional elections, he reports, to stir up dissension and strengthen the "proletarian" idea among as many people as possibly.)3 Following a noticeable lack of success in this effort, Alice Gordon, an officer of the Party's District One (New England), asserted, "We Communists are for a third party because the Democratic Party cannot be transformed into a people's party." The remark forecast the efforts of the Communists to infiltrate the 'Progressive Party in 1948. A Communication Model In attempting to analyze the pleading in the Dennis trial, regarding the nature of Communist rhetoric and the issue of "discussion" as Opposed to "advocacy," it may be useful to conceptualize the rhet- orical efforts of the Party in a communication model. Analysis would indicate that the model would be a four-level one. At the first or base level occurs the relatively secret "inner-Party" dialogue pre- supposed by the Almond hypothesii?4 Here, actual Communist policy is created, and it is created in frankly revolutionary terms. The second level we might call the ”school" level, and would represent the patient indoctrination of new members to the mysteries of Marxism— Leninism through the study of the basic literature of the movement and 103 Philbrick, gp. cit., pp. 191-192. lMSee p. 67. 73 through the "free discussion" method. The third level would repre— sent “agitation,” and the fourth level would represent "propaganda." Here, Lenin's distinction between the two terms is significant. The attack is primarily agitational. Propaganda, although valuable, is a long-range softener, to be handled chiefly on an intellectual level by the educational department; agitation is immediate, inflammatory, conducive to acute discontent, the spe cialty of the field organizer. 105 Lenin's distinction is decisive. A prOpagandist, he says, to explain unemployment must talk about the capitalist nature of the crisis, the need for building a socialist society, etc. Many ideas must be expounded. "So many indeed that they will be understood as a whole only by a (comparatively) few persons." But the agitator, on the other hand, selects one well—known aspect of the problem, such as "the death from starvation of the family of an unemployed worker." He will concentrate on imparting a single idea to the masses: why this family died. Or, in Lenin's words, he will show "the senseless contradiction between the increase in wealth and increase in poverty." Lenin's formula for the agitator, then, was"evoke dis— content and revolt‘ggg. Leave a more complete explanation . . . to the propagandist." As a primary source of invention, then, the Party searches.American life for agitational points, such as the eviction of a family, the arrest of a Negro, or a proposed rise in transit fares. J. Edgar Hoover concludes that this type of mass agitation is most effective in acquiring the temporary support of non-communists 105 V. I. Lenin, quoted in J. Edgar Hoover, 2p, cit., pp. 189—190. 74 to Communist themes. We could argue, then, that the Communist theo- retician-rhetorician would find occasion to design messages for all four of the suggested levels in the communication of Communist policy. This discussion of the rhetorical practices of the Communist Party may be concluded by suggesting that the Party constitutes a conspiracy. ‘Whether these activities constituted a criminal conspiracy under the terms of the Smith Act was, of course, the principal issue of the Dennis trial and a question properly left to the jury. There is little question, however, about the finding that the nature of the conspiracy is rhetorical. As the Overstreets have expressed it: Communist conspiracy is no game of cops and robbers. It is a carefully devised method for carrying on a one— way traffic of ideas. It comprises all the tactics and strategems by which the Communists take their "one talent" into non-Communist environments everywhere without ever taking it into the "open market places of the mind. 106 106 Harry and Bonaro Overstreet, gp. ci ., p. 43. 75 CHAPTER III THE OPENING SPEECHES The United States House of Representatives Committee on UneAmerican Activities had completed a report on the American Communist Party in May of 1948‘.)7 The report was a pointed one and pointed directly at Title I of the Smith Act. The report was titled Report on the Communist Party of the United States ag_gg_ .Advocate of Overthrow of Government by Force and Violence. The indictment in this trial was drawn up by the Grand Jury for the Southern District of New York and was returned sealed to the United States Attorney for that district, who opened it on July 20, 1948. The several defendants were subsequently brought to the jurisdiction under federal bench warrants. Pleas of not guilty were entered in each case, and bail of $5,000 on each defendant was set. The indictment charged violation of the criminal conspiracy sections of Title I of the Alien Registration Act of 1940 (Smith Act) and named as defendants the twelve current members of the National Board of the Communist Party of the United States of America. In January, 1949, the trial of William Z. Foster, the National Chairman of the Party, was severed due to a heart ailment. The remaining eleven defendants and their attorneys were: Eugene Dennis, National Secretary, New York, who acted as Attorney per se 107 U.S., Congress, House, Committee on UneAmerican Activities, Report on the Communistgggrty of the United States as an Advocate of Overthrow of Government by Force and Violence, Report No. 1920, 80th Cong., 2nd Sess., 1948. 76 (for himself), Carl Winter of Detroit, the Michigan State Party chairman, represented by George W. Crockett, Jr., a Negro attorney from Detroit; Jack Stachel of New York City, National Education Director of the Party, also represented by Mr. Crockett; Henry Winston, represented by Louis McCabe of Philadelphia, Pennsylvania; John W. Davis, Jr., Henry Gates, and Irving Potash, represented by Harry Sacher of New York; John B. Williamson and Gilbert Green, represented by.Abraham Isserman of New York; and Gus Hall, alias Hallberg, and Robert G. Thompston, represented by Richard Gladstein of San Francisco, California. These defendants constituted the membership of the National Board of the C.P.U.S.A. In August, 1948, Mr. Green and Mr. Winter were granted permission to leave the Southern District of New York. The Court limited their travels to the continental United States. Mr. Hall, who was then Ohio State Chairman of the Party, was granted permission to return to Cleveland?8 Subsequently, attorneys McCabe, Crockett, and Gladstein were admitted to practice before the Court for purposes of appearing for particular defendants?9 The trial opened on the 17th of January, 1949, in the United States District Courthouse on Foley Square in New York City. The 110 Honorable Harold Ru Medina, DuJ., presided as trial judge. 108 1 R. 10. Pp. 1—53 of Vol. 1 of the Trial Record are a Journal of Docket Entries recording administrative events of the trial. 1091 R. 15. 110 Medina's impressions of this trial are best stated in an address to the Economic Club of Detroit, April 18, 1955, entitled, ”A Look at America." printed in The Anotomy of Freedom, by Harold R. Medina, edited by(L Waller Barrett,(New York: Henry Holt and Co.,1959), pp. 1-18. 77 .Appearing for the Government were: John F. X1 McGohey, United States Attorney for the Southern District of New York; Frank H. Gordon and Irving S. Shapiro, Special Assistants to the United States AttOrney; Edward C. Wallace, Special Assistant to the Attorney General, and Lawrence K. Bailey, Attorney, Department of Justice. The Court convened at 10:30 a.m. and Mr. McGohey moved for trial Indictment No. 128—87, bearing the criminal conspiracy charge. It was requested at that time that William Z. Foster be severed due to a serious heart condition. Before the Court could respond to the Government's motion for trial, he was-interrupted by Mr. Sacher of the defense. "May we be heard, your Honor?" Thus began a nine—month trial of the American judicial system as well as of the issues in the case. Mr. Sacher complained of the great number of New York City police assigned to the court house for the opening of the trial?11 Mr. Gladstein joined in the protest and argued that prospective jurors coming into the building would be influenced by the detail of some 400 uniformed police. A discussion of "police trials" occupied the entire day. On January 18th the defense was ready with a motion for a hearing to be conducted before a judge other than a judge of the Southern District of New York. The motion was based on a challenge of the Array, i.e., the manner in which prospective jurors were obtained and selected in the Southern District. The decision was reserved. On the 19th, Judge Medina denied the motion insofar as conducting the hearing before a judge other than a judge of 11 1l R. 55. 78 the Southern District. The decision was reserved in all other respects. On January 20th, the existing motion was granted, bearing on the manner in which prospective jurors were obtained and selected in the District, thereby opening the doors to a three—month trial of issues not mentioned in the indictment. The Court began immediately hearing testimony on the challenge of the array on the 21st. The Defense presented a number of requests for permission for appearance as Amicus Curiae (friends of the Court). Typical of the applicants was Harold I. Cammer for the American Labor Party and the New York City chapter of the National Lawyers Guild. The Party was marshalling its forces. In all cases, leave to file briefs was granted; permission to offer oral argument was denied. The defense was beginning, in these early days of the trial, to show its ability to keep several issues before the Court at once. The challenge of the Array took a total of seven weeks, and during this period argument was also heard on the questions of a) motions for disqualification of Judge Medina and all other judges of the Southern District of New York, b) the cordon of police about the courthouse and the fear and apprehension that this presumably instilled in prospective jurors, defendants, and defense counsel, c) the inadequate size and seating arrange- ment of the courtroom and whether the defendants were being denied a public trial, and d) whether the trial was deliberately being delayed by the defense. The antagonists were also becoming acquainted with each other and a number of questions of trial procedure were determined. 79 The persistence of defense counsel (there were five of them) in arguing in relay and in arguing after the trial judge indicated that he did not desire further argument became apparent during this period. Mr. Gladstein and Mr. Sacher proved to be the most persistent, while Mr. McCabe, Mr. Isserman, and Mr. Crockett were also aggressive. The constant challenging of customs and arrangements in the Court and the jury system eventually gave rise in the judge's mind that the defense strategy was to delay the trial of the issues and to put the government and its processes on trial. In regard to the 400 police officers in and around the court— house, Mr. Gladstein and Mr. McCabe both asserted that it was sifficient to cause fear in them and that friends of the defendants might be kept away from the trial. Isserman asked the Court to conduct an inquiry into the police cordon matter before it proceeded with any other question. The request got a flat "No!" from the Court. Isserman immediately made a further offer of proof and wanted City Police Inspector August Flath called as a witness. McCabe noted that the "massed demonstration" of police power did not take place until prospective jurors were scheduled to appear and assigned it as a government strategy?12 In the same manner, each of the defense lawyers made statements and arguments on the question of the size of the courtroom. It was one of the regular general sessions courtrooms in the building and would seat 60—70 members of the general public. 1121 R. 76-77. 80 McCabe characterized this as too small for the "trial of a great political party." Complaint was made about the number of seats reserved for the press, and the question was developed as to whether a public trial is held primarily for the defendants' benefit. The defense offered to prove that in thirty years of activity, the Communist Party had never created a situation that would require 400 policemen to control. McCabe shouted at one point that he himself felt intimidated by the atmosphere in the courtroom. Mr. McGohey countered for the government by calling the Court's attention to page 1 of the Daily Worker for January 17th, which called for a noon-hour picket line around Foley Squarif3 Argument was also had on the question of a continuance of the trial. Isserman argued that going to trial at that time was a denial of the due process in that anti—Communist activity by both government and private groups had so prejudiced the public that a fair trial could not be bad. This argument was consistently repeated throughout the trial. Medina's position was that such a charge as this, political in nature as it was, was bound to cause much discussion. He characterized Mr. Isserman's argument aptly by saying that it amounts to saying "that if people do those things then they can never be tried and they must continue indefinitely. Now I can't accept that.:14 This exchange forecast the basic‘positiOn of the Court and counsel for defense! 113 i There had been up to 1500 pickets around the Courthouse during October and November, 1948, when pretrial motions were argued before Judge Hulbert and Judge Medina. See 11R 70 ff. 114 l R 115. 81 The Challenge of the Array The defense had made a challenge of the Array the previous fall, but had withdrawn it so that they could challenge the January panel. The proceedings finally began on the 2lst of January. Gladstein and Isserman again requested that another judge sit during the trial of the challenge. This request was denied--the first witness called, an in— vestment banker and member of the January jury panel, set the pattern of interrogation that was to develop with all the other panel members called as witnesses. The pattern was essentially one of Mr. Gladstein asking the witness personal financial questions, trying to bring out the panel member's wealth and status, Mr. McGohey objecting for the government, and Medina sustaining the objection. This pattern was repeated throughout the challenge, but the defense counsel plugged ahead. Endless colloquy developed on how to decide the cut-off line between rich and poor. The $5,000 figure was argued as most logical. During this period, the personalities and speaking character- istics of the several lawyers began to emerge. McCabe and Judge Medina enjoyed a little aside at one point in regard to McCabe's using a quotation from the poet Virgil. It seems that the judge was a Virgil scholar, a fact not unknown to Mr. McCabe. Mr. Isserman, on the other hand, became quite testy on occasion and at times insolent. The great bone of contention was the right of each lawyer to be heard on each motion or issue, which made adjudication of these preliminary questions such a lengthly process. The principal debate deve10ped on the question of what evidence and witnesses the defense would be allowed to bring in to prove the jury challenge. They had embarked on a vast effort of presenting negative proof, i.e., showing that the jury panels were made up almost entirely of professional people, corporation personnel, etc. The issues deve10ped 82 by the defense here were: 1. Are the poor excluded from jury panels, grand and petite, in the Southern District of New York? 2. Is this a consistent, systematic exclusion? 3. What is the proper and most useful way to adduce this exclusion (in the form of what evidence and witnesses)? The defense was ready to call a great number of panel members in order to present a mosaic, "like the dots in a photograph," as Mr. McCabe put it, "to show a pattern of exclusion." Medina, of course, was interested in shortening the proceedings. The defense was quick to jump on the news item that Chief Judge Knox, of the Southern District, admitted in an ad— dress in.Allentown, Pennsylvania, over the weekend, that juries in the Southern District of New York were "hand-picked."115 The defense challenge witness—in—chief was Doxey A. Wilkerson, a reputable Negro educator who had turned to Marxism as a social science. Having acquired a B.A. and M.A. at the University of Kansas and pursued further study at the University of Michigan, he held academic positions at Virginia State College at Petersburg and at Howard University, Washington, D.C. Subsequently, he became a specialist in Negro Education in the United States and participated in several government research projects during the depression years. He was, at that time, Director of Faculty and Curriculum at the Jefferson School of Social Science in New YOrk City, which he character- 116 ized as a "Marxist educational institution. 1151 Re 460. 116 1 Re 626. Escapism ll 83 Wilkerson had been asked by the defense to make a study of certain population characteristics of the Southern District of New York, which was made up generally of Manhattan, Bronx, and Westchester counties. .Also, he had prepared certain statistical studies of people on petit jury panels in the Southern District during the previous ten years. He had a great number of maps, charts, tables, and other material ready. ZHe spent a total of three weeks in court, being recalled several times. In these early months, the interested world outside the court— room would periodically impinge on the attention of the litigants. At the opening of the afternoon session of January 28th, while Mr. Wilkerson was on the witness stand, Judge Medina made an announcement on the subject of violence. It seems that he had received a number of threaten— ing letters at home since the trial began and his wife had attended court recently and had asked a city detective to guard the judge during the luncheon recess. An alert reporter had apparently overheard this request, and certain rumors had resulted. However, Mr. Sacher of the defense started an angry little debate, holding that the judge should have also taken judicial notice of an assault that had taken place on the defendant Thompson and subsequent threats to that defendant's family?17 On February 2nd Judge Medina was late to court and explained that a large delegation of union people had been waiting to see him in his chambers. In discussing these delegations later, Judge Medina reported 117 1 R. 666. 84 that the delegations came one after the other, from all parts of the country, along with an endless flood of telegrams, demanding to know why he was against the working man, and hated the Jews. Medina concluded that the effort was designed to wear him out, and he put an end to the delegations?18 A few days later, Mr. McGohey called the judge's attention to a pamphlet prepared by the New York State Communist Party, which dealt with the challenge of the Array issues and was being handed out outside of the Courthouse on Foley Square, where some picket lines persisted, especially at the noon hour. The National Party, and especially the New York State Party, put on a persistent public rhetorical effort during the entire trial. Advertisements appeared regularly in the Party organs calling for a marshalling of forces for the defense?19 The Civil Rights Congress campaign during the summer of 1948, following the return of the indictment, set as a goal the raising of $250,000 for the defense. By February of 1949, it was reported that $47,095.45 had been raised, of which $25,592.05 went for legal defense with the balance spent on ”mass agitation, tours, conferences, and printing.'1'20 The ratio of expenditures might be taken as a reflection of the importance attached to the public rhetorical effort. Herbert Philbrick has discussed a Civil Right Congress conference held at the Hotel Bradford, Boston, on December 4, 1948. Len Goldsmith, in making 118 See Medina, The Anatomy of Freedom, 33. cit., pp. 4-5. 119 See especially the Worker for January 30, 1949, and the Daily Worker for March 22, 1949. David Shannon, The Decline of American Communism, A History of 3&9 Communist Party of the United States since 1945,(New York: Harcourt, Brace and Co., 1959), pp. 198-199. 85 the principal address, attacked the Smith Act and remarked, "We need the $250,000 . . . in our hands before January 17th" (the date set for trial). “Of course," he added, "our major fight will be to prevent the case from coming to tr'ia1.'1'21 The relationship between the witness Wilkerson and Judge Medina remained good throughout the three weeks Wilkerson was on the stand. They accorded each other professional respect and were patient with each other. Medina became more and more persistent, however, in insisting that much of the evidence offered on the challenge was repetitious. On February 14th, the Court ruled that defendants' memorandum outlining further proof on the Challenge of the Array was insufficient and that the government would begin putting in its proof. The defense counsel were so quarrelsome at this point that they were warned that they were getting insolent?22 Mr. Sacher's argument was characterized as propaganda?23 Mr. Gladstein was rebuked for walking up to the bench and pointing his finger at the judge. Mr. Isserman got on the record that Mr. Gladstein was standing alongside the jury box at the time. Tempers were growing short. During the presentation of the government's case, which was made up essentially of an examination of jury clerks and other jury officials, the terse colloquy continued between the judge and the defense counsel. At one point they recessed to debgte to cha'berse The defense cross- examination of government witness Joseph F. McKenzie, a jury clerk, took four solid days. On February 18th, late in the afternoon session, 121' W“. Philbrick, op. cit., p. 271. 122 2 R. 1661. 23 l 2 R. 1660. 86 Judge Medina announced that the cross-examination was over. Considerable debate followed. Isserman outlined that the defense would prove if allowed to continue. Medina's position was that the defense "just didn't have the goods!" One fact that was brought out was that the jury clerks had been in the practice of putting a "C" on jury cards to designate colored persons. IMedina remarked at one point that he couldn't see anything wrong with this. Mr. Crockett replied simply, "Well, that's why we want you disqualified." The hearings ended on March lst, 1949, and the decision on the challenge was reserved. The challenge was later denied. Court was adjourned until March 7th, when a jury was to be empaneled. When Court convened at 10:30 A.M. on the 7th, the defense was ready with a number of new motions, including one to dismiss the indictment (President Truman had publicly referred to the defendants as traitors), a 90 day continuance of the trial, severance of each defendant, and additional jury challenges in excess of those granted under Rule 24(B) of the Rules of Criminal Procedure. All motions were denied after debate except the last one, which was reserved. On March 10th, the Court, after reconsidera- tion, extended an additional five challenges in addition to the ten pres. emptory challenges allowed under Rule 24(B). The excercising of these challenges took several days. The subsequent challenges for cause included attempts to challenge for membership in the Catholic Church and a number of civic, patriotic, and fraternal organizations and even employment by the veterans Adminis— tration. The defense argument was that the Church and certain other organizations, as well as the government, had taken such a strong stand 87 124 on the subject of Communism. These challenges were disallowed. On March 16th a jury of twelve were sworn. The following day four alternate jurors were empaneled. On the same day Mr. McCabe with- drew as attorney for the defendant Eugene Dennis, who chose to represent himself. McCabe has reported that he recommended that Dennis speak for the defendants' case if he wanted the jury to know their philosophical 125 and political position. On March 18th the Court instructed the jury. The instructions were brief and candid. Session times were set for the trial (10:30 to 1:00 and 2:30 to 4:30 P.M. with Friday afternoons off). Then, as if foreseeing the arduous months ahead, Judge Medina remarked, "If, due to fatigue, or other circumstances, it is warranted, . . . I may take 126 an occasional adjournment for a couple of days." The essence of his instructions was expressed simply but with some eloquence: "I do bag of you, as we go through this trial, to be patient . . . there are few qualities in life that are so important. . . If you once get yourself in the frame of mind where you know that you have a task ahead to be done . . . you get a certain calm and peace of mind about it. That is . . . the essence of justice. Now, do that? 127 The remaining instructions were the standard instructions in a criminal trial: 1. You must not read anything about the trial, or listen to the radio - you must not talk about it among your- selves - or with your familiies or friends, or anyone else. 2. Do not permit anyone to discuss the case with you in any manner. 1244 R. 2999 l25-Te1ephone interview with Louis F. McCabe, Philadelphia, Pa., June 15, 1962. 126 4 Re 3197-98. 127 Ibid. 88 3. Under the law . . . I am permitted to instruct the jury occasionally as the case progresses. I will very likely give you some instructions from time to time which will tend to keep your minds right on the ball, so that you will always know just what the issues are; and when I think you need some help in following the proof, I will try to give it to you. Following these brief instructions, court was adjourned to the-following Monday morning, March 2lst, when the trial of the issues began. On that day, Judge Medina read the relevant sections of the 128 Smith Act and the indictment to the jury. He then gave some brief and concise instructions as to what constitutes evidence: 1. The charge is specific and refers to a conspiracy to organize. . . 2. The case does not involve a question of guilt by association but a charge of specific guilt against each defendant as an individual. 3. . . . You must decide the case on the evidence. 4. . . .When the lawyers speak the lawyers make arguments. in their opening statements and in their summations those arguments should be listened to by you and carefully considered for such weight as you may consider that they are entitled to. 5. But what those lawyers say is not evidence. One of these defendants, Eugene Dennis, has elected to represent himself here. What he says is not evidence until and unless he gives sworn testimony in the case. 129 Immediately following these instructions, Mr. Isserman of the defense requested permission to give his opening statement after the government had completed its case. Other defense counsel joined in the motion. The grounds were: 128 4 R. 3200-03. 29 4 R. 3204. 89 1. Vagueness of the indictment with lack of similarity on many issues and no bill of particulars. 2. Lack of effectiveness of a presentation at that time due to the duration of the prosecution's case. 3. Since it was a matter of discretion for him, the Court denied the motion. The Opening Statements Beginning with the morning session of March 2lst, seven opening statements were given. Mr. McGohey, the United States Attorney for the Southern District of New York spoke for the government. Then Mr. Dennis spoke, ostensibly for himself and principally for the Communist Party of the Unted States. Following this, the five defense counsel made statements on behalf of their clients and set-out certain issues, which they had divided up among themselves by agreement. Mr. Crockett spoke first on behalf of the defendants Stachel and Winter; then McCabe, for the defendant Winston; then Mr. Sacher, for Davis, Gates, and Potash; Mr. Isserman, for Williamson and Green; and Mr. Gladstein, for Hall and Thompson. While each opening and summation were clearly important in the trial of the issues and especially in regard to the legal guilt or innocence of each defendant separately, in getting at the rhetorical structure of the Dennis case, the Opening and summations of Mr. McGohey for the government and Mr. Dennis for the Communist Party are especially important. Longer and more definitive of the political issues behind the trial, McGohey's and Dennis' speeches are the essential rhetorical statements to be looked to. While the five lawyers retained by the defendants presented essentially legal defense speeches, they also developed some of the larger political arguments. The participants spoke from a lectern placed 90 approximately six feet in front of the judge's dies and facing the jury box, which was on the judge's left. The courtroom was crowded with spectators throughout the trial, and the noise level was sufficient to be a problem for all speakers. For the Government: John F. Xe McGohey, United States.Attorney The basic purpose of Mr. McGohey's Opening statement was in- formative, as to the nature Of the charge and the nature of the conspiracy to be shown. The speech was structured entirely on the indictment, which it serves to introduhg? The basic contentions Of the speech may be ex- pressed as a categorical syllogism (as are all legal indictments brought under statute law): Major Premise: All persons conspiring to commit these specific acts are guilty of criminal conspiracy. Minor Premise: These eleven defendants did conspire to commit these specific acts. Hense: These eleven defendants are guilty of criminal conspiracy. Mr. McGohey had first set up the standard of proof which we have structured as the major premise of a syllogism. This he did by explain- ing the criminal sections Of the Smith Act under which the indictment was brought. These sections provide that it shall be unlawful to l) knowingly and willingly teach and advocate the duty and necessity to overthrow the government by force and violence, and 2) to organize a society, group, or assembly Of persons who teach and advocate the overthrouw of the government, or 3) to conspire to do either. He next reviewed the grand 130 The indictment is printed at 4 R. 3200-03. 91 jury's charge that during a specified period of time (April, 1945 to July, 1948), the eleven defendants named in the indictment "conspired to do both of those thingslfil Here we have the assertion of the minor premise of the syllogism: These eleven defendants conspired to commit these specific acts. The balance of the speech is expositional and argues inductively from a specific instance(examp1es represented by the enabling counts of the indictment) to the inference stated in the minor premise of the basic syllogism. Several causal and sign arguments regarding the relationship of Marxism-Leninism and the organisation and activities of the Party, on which the government's case will eventually rest, are introduced or implied here. Mr. Gladstein of the defense interrupted McGohey early in the speech. The United States Attorney was understandably indignant. Gladstein objected to argument making reference to the reconstitution of the Party in 1946 and reference to earlier events. His argument was based on the fact that these events were not mentioned in the indictment. Judge Medina ruled that McGohey had a right to refer to such early events because the case involved the question of specific intent on the part Of the defendants. The judge also made a patient little speech about the matter of counsel being interrupted while making opening argumentg? In reviewing the remaining nine paragraphs of the indictment, McGohey set out the various types of activity which go to make up the 131 4 R. 3207. The text of this speech is found at 4 R. 3206-3224 inclusive. 132 4 R. 3213-14. "92 charge Of conspiracy; bringing about organizational meetings, assuming the leadership of the newly formed Party, organizing clubs, and district and state units. recruiting new members, publishing books, magazines and newspapers, and organizing schools and classes to teach Marxist-Leninist principles. He further asserted that Marxist-Leninist principles included 2 the argument that socialism cannot be established by peaceful evolution, but can be established only by violent revolution. The implication is repeated then, in regard to each count of the indictment, that where Marxist-Leninist principles are taught, the necessity of violent revolu- tion is also taught. A major contention at this point was that the Russian revolution of 1917 serves as the classic model for the overthrow Of the United States Government. While it was suggested that evidence supporting this contention will be found in Communist Party literature, McGohey was apparently interested in this opening argument only in suggesting a causal connection between the re-establishment of the Communist Party and the teaching Of these Marxist—Leninist doctrines. To support this causal connection, the United States Attorney traced the events leading up to the July, 1945 Communist Party convention. Prior to this convention, the Communists of the United States, under the leadership Of Earl Browder, had adopted a policy of collaboration and cooperation with all classes of people in the United States in order to support the international coalition of Great Britain, Soviet Russia, and the United States established by the Teheran Agreement of 1943. .At the 1945 convention, he charged, the defend- ants repudiated Browder's peaceful program and reconstituted the Communist Party. 93 McGohey next suggested a causal relationship between the events Of this convention and the article written by the French Communist leader, Jacques Duclos, entitled "On the Dissolution of the Communist Party of the United State?2 The article condemned Browder's proposals for peaceful collaboration as contrary to sound Marxist-Leninist doctrine. IMcGohey next asserts that certain of the defendants, with other members of the war time Communist Political Association, adapted a resolution accept- ing the views Of Duclos and condemning their existing policies as a revision of Marxism. Here a direct causal connection is suggested. He than specific- ally names the defendants as members Of the NationalPBoard which affected these changes in policy. This is a necessary matter of showing identifica- tion (res gestae) and conspiracy. Mr. McGohey thus argues that the American Communist Party, by the readoption Of Marxist principles, had adOpted the principle that the 1917 Russian Revolution is the classic model for the violent overthrow of the United States Government. While witnesses and documents were produced later in an attempt to establish a causal relationship, as we have it here, it is a sign argument. At this point, McGohey had established the first point in the indictment to be tried, i.e., that the defendants conspired to organize the Communist Party of the United States of America as a group of persons to teach and advocate the overthrow of the United States Govern— ment by force and violence. This also concluded the purpose unit of a 133 Published in Cahiers du Communisme, the theoretical journal of the Communist Party Of France, in April, 1945, and republished in full in the Daily Worker of May 24, 1945, pp. 1-2. 94 basic purpose-means pattern. McGohey then proceeded to outline what the government intended to show concerning the organization and the activities of the Party. This part of his discussion was almost entirely expository. In discussing the activities of the Party, he asserted that the clubs were actually classes for the indoctrination of members with Marxist—Leninist theory. In this discussion, McGohey laid down the line Of argument supporting the second count of the indictment, i.e., the Party prepared to carry out its program of teaching and advocating the duty and necessity of overthrowing the government of the United States by force and violence. It also established the means unit of the purpose-means pattern. Following the initial explanation Of the Smith Act, which established the major premise of a categorical syllogism, this opening argument was an inductive development of the specific charges in the indictment, which constituted the minor premise Of the syllogism. The arrangement or disposition of the government's Opening statement was also structured by the indictment. The indictment is seen to have been the principal source Of invention for the speech. In opening the case for the government, the United States Attorney reminded the jury that, as the Court had told them, the indictment outlines a charge Of crime and that "my purpose in making this state— ment to you now is to give you a sort of blueprint to help you relate to those charges, the evidence that I prOpose to present to you from witnesses on the stand to support the charges of crime in the 134 indictment. 1344 R. 3206-07. 95 In reviewing what the government intended to show in support of these charges, the United States Attorney seeMs to have adapted a basic plan of inference. The basic structure of the speech was a statement to be proved (these defendants conspired to do these things), followed by reasons for accepting the statement. The repudiation Of Browder's philosophy and the readoption Of Marxist—Leninist dOctrine by the defendants was one reason for the belief of the assertion. These events Operated in a claimed causal relationship to the statement. The exposition of the organizational structure Of the Party and the exposition of the activities of the Party were the other two reasons for the belief of the statement. These reasOns operated in a basic purpose—means relationship of inference to the principal statement or charge. The organizational structure of the Party showed design of intent (established means) on the part of the defendants and the activities of the Party also operated as means to the alleged purpose. In motivational terms, this opening argument could be said to have been a speech of implication, i.e., one of straight exposition leading the audience to an almost inescapable conclusion. ‘While a basic contention is made by repeating the charges in the indictment, this basic statement was not restated at the conclusion Of the speech. Little formal argument was introduced, nor did Mr. McGohey reassert that the activities and facts reviewed actually constitute "criminal conspiracy." This was simply implied. In classical terms, the Opening argument could be said to constitute only part of the classical arrangement for an oration. Little exordium is found in the speech or in the Court's instructions to the jury. 96 It is not necessary to dispose the audience, to plead for a hearing. This Opening argument constituted the Narration, Statement, and Partition steps of the classical arrangement. The Protf is presented through government witnesses in the months that followed, and the refutation was heard in cross—examination. Further refutation and the peroration was heard in the final argument for the government. The complete case for the government may be said to constitute an "oration" in the classical sense, and hence, legal pleading may be said to constitute a form of public address in the contemporary sense. In terms of forensic style, this Opening address to the jury was in the factual style rather than the emotive style?35 The language was the language Of the criminal indictment which was being reviewed ("Now that is what we charge"). It was the language of narration ("Now here is what happened"). After narrating the details of the reconstitution Of the Communist Party at the 1945 convention, Mr. McGohey adapted the language Of exposition to detail the organization and activities of the Party. He used the space concept to indicate the structure of the Party ("Now above the State and District organizations is the National Committee"). Reviewing the specific charges as to the philosophy, organization, and activities of the party gives Mr. McGohey's opening argument a particular unity and coherence. It is a story, a report, structured by the indictment itself. The speech was held together by simple, one 135 See Frederick A. Philbrick, Lagguage and the Law, The Semantics of Forensic En lish, Macmillan and Company, New York, 1950, esp. Chapter III, "The Two Forensic Styles". 97 sentence transitions and by restatement ("Now, in sharp contrast, you will see that when the convention met the following year . . ." "Thus, as I said before, you will see the sharp contrast."). Emphasis was used in one essential regard. A critical and vigilant mood was established by the constant repetition of the several force words found at the very core of Marxist-Leninist doctrine. Over and over, we hear "force and violence," "smashing of the government," and "violent overthrow." Beyond this, and in effective contrast, Mr. McGohey in this ppeech was modest, informative, factual. He used the language Of the classroom. He instructed. The trial issues delineated in this speech would seem to be: 1. Did the defendants named, and each of them, conspire to knowingly and willingly teach and advocate the duty and necessity to overthrow the government of the United States by force and violence? 2. Did the defendants named, and each of them, conspire to organize a society, group, or assembly of persons who teach and advocate the overthrow of the government of the United States by force and violence? 3. What proof, in the form of statements, activities, testimony and documents, may fairly show the means and intent of such conspiracy, or absence of such conspiracy? Immediately following Mr. McGohey's opening, Mr. Isserman was ready with four motions: l. A directed verdict of acquittal on the ground that the activities charged to the defendants . . . all embrace. political activity, the right of assembly, the right of petition, and expression of Opinion. 2. The Smith Act is unconstitutional and to compel the defendants to stand trial under it would be a denial of due process of law. 3. Request for withdrawal of a juror and a mistrial in that the United States Attorney had alluded in his Opening to matters not covered by the indictment both in point Of times and subject matter. All four I For The as is an e and its pr defend the "present. dassified the way in °P9ning ar the limits Value terms by an 3111' unfamiliar. Throu “1d surges, the JUry’ b the Place, 10th“ sit 98 4. A request for a bill of particulars on the matters not covered by the indictment, and a continuance Of the trial until this is done. All four motions were denied. For the defense: Eugene Dennis, National Secretary of the Communist Party of the United States of America, pro se. The description of Mr. Dennis' opening statement is difficult, as is an evaluation of it. Dennis had chosen to speak for the Party and its program. He was the propagandist, the Orator, who was to defend the Party and the social science he believed the Party to represent. Within his own rhetorical terms, the speech may be classified as a good one, although he later had some criticism of the way in which the defense developed their issues?36 As an Opening argument in a court Of law, it persisted in going far beyond the limits of the indictment, in using a special nomenclature Of value terms, and the Marxist view of the world, featured basically by an all-pervasive class warfare, with which the jury was quite unfamiliar. Throughout this speech, Judge Medina was at once both patient and sarcastic. His remarks surely belittled Dennis' efforts with the jury, but it would be both fair and candid to say that, given the place, the situation, and the forms of address that were proper to that situation, Mr. Dennis had asked for it! 136 See Part Six, "Forward to Victory" (closing remarks at the plenary meeting of the National Committee of the Communist Party, March, 1950.) of Eugene Dennis, Ideas The Cannot Jail, International Publishers, New York, 1950, esp. pp. 169—173. In Mr. Danni 1. III. '. The March 2131 to the jur reified Va t° Provide and those This "1 America “America res‘3'fiblanct Here '9 set virtues of °' libero, In de into the no a"! ta"ght \ 137 el _ 4 I “naive. 99 In terms Of logical proof, in his reply to the charge of conspiracy, Mr. Dennis deve10ped three contentions: 1. First, in regard to the government's characterization Of the Party's organizational activities from 1945-1958, Dennis stated that "we will put into the record what we gid_do." II. Second, he asserted that the defense would establish, in relation to what Communists actually do, just what are the principles of Marxism—Leninism. III. The third contention was biographical. "We eleven defendants and Foster became Communists as a result of a variety of circumstances and different experiences." The first assertion was developed in the morning session of March 21st, following Mr. McGohey's opening. In introducing himself to the jury, he immediately assigned to himself and his Party certain reified value terms. "I have decided to defend my honor and liberty . to provide . . . the best defense, not only of my democratic rights and those of my party, but Of the liberties Of the whole American peoplz? This was followed by a warning and a denial. "It is ominous that an.American should be called on to defend in court the principles of an.American working class party. Our Party does not bear the remotest resemblance to the fantastic conspiracy painted . . . in the indictment." Here we see, early in the speech, the effort to assign to his cause the virtues of patriotism as well as the altruism Of the Party as a champion Of liberty. In developing his first assertion, Dennis launched literally into the accomplishment Of his promise to "put in evidence all that we have taught and advocated and done." He reminded the jury that the Party 1374 a 3225. The text of this speech is found at 4 R 3225—3250 in- elusive. 100 had never faced this charge before in thirty years of existence (which was only technically correct in the light Of the convictions of Schenk and Abrams under the 1917 law). He further reminds the jury that the word "did" appears in the indictment only once (in the first paragraph, which alleges that the defendants did conspire). All other paragraphs, he points out, alleged only that the defendants 'would' do something. Then: "Of course we Communist leaders actually did do certain things on or about April 1, 1945. We will put into the record what we did d5?§ Here again Dennis is asserting the contentions that the defense should be allowed to put into evidence all Of their activities. This turned out to mean, in Mr. Dennis' mind, the right to review all that they had adecated during the indictment period. This is what led to the constant colloquy with the judge during the morning section Of his speech. .A basic problem of proof seems to be present here. The question would seem to be, how does one prove that one did not conspire to do some criminal act? Is it relevant to show what one did legitimately do? .At any rate, Mr. Dennis tried. In spite of the many interruptions, the speech was conpetently organized. "Signpost" language was consistently used: "The defense will establish." "We will prove." Among the arguments he introduced under his first contention (What we Communists actually did do) were the following: 1. A. The overt acts of force and violence committed by Hitler Germany and militarist Japan for the purpose Of overthrowing and destroying the Cavern-mat of the United States and other governments 138 4 R. 3228. 101 have a vital bearing on the charges brought against the defendants. . . in that . . . we taught the duty of upholding the United States-Government. "We didn't teach that Communists in the armed forces should desert their World War battle post." B. We Communist leaders in the period covered in the indictment, then advocated that labor and the people uphold the government against its domestic as well as its foreign enemies, and we will show that we advqcated that the people strengthen their support for the Roosevelt policies. C. We . . . particularly increased support at the dates mentioned in the indictment. . . for the Yalta Agreement, the agreement to fOund the United Nations and the Roosevelt Plan for securing the postwar economic security of the American people as embodied in the economic bill of rights. The draft resolution drawn up at the 1945 convention, proved to be a principal source of invention for Dennis here. He pointed out that the indictment mentions this document but never quotes from it. Drawing from that draft resolution, Dennis argued further that " we Communists issued certain warnings" (regarding the advent of the Truman.Administration). These warnings were that l) employers would refuse to grant adequate wage increases despite huge wartime profits, 2) that the food trusts would raise prices, 3) that returnig veterans would face a serious housing shortage, 4) that veterans would come home to find that Negroes are still lynched and Jews discriminated against in the United States, and 5) that the victory Of the United Nations over the Axis Powers would not automatically bring lasting peace unless labor and all democratic peoples here and abroad worked together to curb the economic royalists, the war mongers. These arguments were constantly interrupted by colloquy as Judge Medina tried to get Dennis to limit the scope of his arguments to the allegations made in the indictment. Dennis pressed on to include 102 arguments concerning American cartel deals with Franco Spain, the unjust and criminal war waged against the Chinese people by the miserable Chiang Kai-shek, the civil war against the Greeks, the problems of Israel and Indonesia, restoring German and Japanese monopolies and war potential under the new management of the American cartelists, the Truman Doctrine, the Marshall Plan, and the Atlantic Pact, which, as Mr. McGohey was quick to point out, had been signed only a few days earlier! The Morning Colloquy The morning segment of Dennis' Opening, which developed the first contention, set out to establish broad limits of admissability for the defense and at the same time to dispel suspicion Of any use of Aesopian language. We defendants will explain our political theories in the plainest of all language, the language of our program and our deeds. 139 Mr. McGohey raised the first objection as to the scope of Dennis' arguments. It was in regard to the argument that the Party had not taught that Communists in the armed forces should desert their world war battle posts. Medina upheld the Objection. Mr. Dennis argued here, for the first Of several times, that "it is very relevant and essential that we establish really what we Communists taught, advocated, and did." Mr. Dennis then offered to go on to another point. 139 4 R. 3225. 103 A minute later, Mr. McGohey had objected again, with the judge's agreement. The agreement, however, was not decisive. "I don't see, Mr. Dennis, how it is going to be relevant." .A few minutes later, the Court interrupted again. However, the Court went on to say, "I am inclined to permit a certain amount Of digression strictly from the issues.'1'40 It would have seemed better here if one of the defense lawyers had fought out this question of what the defense could bring in by way of issues. As the situation was allowed to develop, it would seem that the jury's first impression Of Dennis was that of an inept troublemaker. The colloquy began again when Mr. Dennis took up the problem of returning veterans who faced a serious housing shortage. "What has that got to do, Mr. Dennis, with this charge of conspiracy here? It seems to me that is the same sort of thing that you were talking about before, that there were some things that you wanted that you considered very good." Mr. Dennis' answer seemed adequate to a layman. He referred to the fact that the 1945 draft resolution, from which these arguments were drawn, was mentioned specifically in the indictment. The Court's decision here seemed to be a good Operating rule. "Well, I think perhaps it is better to let you go on, but I won't rule now on the relevancy of any of that. We will pass on that when the Offer of proof comes.” The interruptions and colloquy continued, however, and Mr. Dennis maintained his position. "To prove my intent, what I 1404 R 3231. '.‘ 104 willingly and knowingly did, I have to prove my political conduct in this period-hll of it! Not a fragment of it, but everything." The Court then stated the basic disagreement that had developed between them. "Well, I can assure you, Mr. Dennis, that I am not going to have that. We might be here for years." Mr. Sacher, then Mr. Isserman entered the fray at this point, objecting to what had finally become a definite limitation of scope imposed by the Court. The Court relented again, and in doing so was perhaps guilty Of flippancy. He remarked again that proof would be ruled on as offered, but "I am going to let him go ahead now and get it off his chest.'1'41 Sacher immediately objected to this statement and to the audience reaction to it. The same colloquy occurred a few minutes later. "I will not let that go on any more. It is so plainly irrelevant." Dennis pressed on, arguing that the Party had taught that the people should have confidence in their power to prevent another world war. Judge Medina broke in again. "If you think you are going to get this case Off on a question of war and peace you are making a big mistake. We all remember what the case is about?2 Dennis went right on as if nothing had happened, creating the impression that the Judge was perhaps indecisive and losing control of the situation. Medina next cut in with sarcasm. "You mean you think you will show. I don't think you are going to get around to that." Mr. Dennis pressed on. 141 4 R 3237. 1424 R 3241. 105 Finally the Court, in exasperation, exclaimed, "Now Mr. Dennis, that is the end, that is enough.' You are not going to go on with that and you will kindly desist." Dennis once again asked permission to go on to another point. Medina complained, "You said that several times.“ Dennis had a position to state in reply to that. "On the contrary, your Honor said that I might continue, and at various points I did continue. I now ask permission . . ." The Court could only reply, “As I said, you are going to be a terrible problem to me." The colloquy here centered on the defendants' right to argue issues that were dealt with in the Party's 1945 constitution, a document which was mentioned in the indictment. Mr. Dennis asked for a recess and finally got the noon recess three minutes early, which tended to clear the air. The Court seemed reluctant to rule on whether Mr. Dennis' request regarding issues mentioned in the 1945 constitution. "It may be that there is no alternative to just let you go on talking and then I will do a little talking, and then we will dispose Of it in the course of time." The question arises as to whether the Court was hinting that he would later instruct the jury to disregard much Of Mr. Dennis' morning efforts. .A larger question remains as to why no basic decision was made as to what issues could be covered in the openings. It is not unthinkable that this effort could have been a defense strategy to force Medina to limit Dennis' speech, thereby giving the jury a sense of a limited trial of the issues. It must be concluded that the trial judge here was inconsistent in trying to limit Dennis. . . He "gave up" several times (see esp. 4 R 3239), then was guilty of sarcasm (4 R 3241). 106 In the afternoon session, Dennis immediately made a transition to the second contention, regarding the principles of Marxism-Leninism. "What we have taught and advocated. . .flows from our.principles. . . hence, the $64 question, what are the principles of Marxism-Leninism and what are they not?" He sympathized with the jury in their position. "I sympathize with the jury as I would if you had been brought here to pass on the merits Of the Einstein theory of relativity." Scientific socialism, he went on to tell the jury, "is much easier to understand than the theories of relativity, nonetheless far more extensive and comprehensive in their scope and subject matter and they are even less triable in a court of law." Here again a suggestion is made that the indictment is improper. At any rate, he met the challenge of the prosecution directly. "The defense will squarely meet and disprove the prosecution charge that the principles of scientific socialism teach or imply the duty or necessity to overthrow the United States Government by force and violence." He proceeded to outline this promise by first sketching biographies of Marx and Lenin. He tried to establish ethical proof for Marx by referring to his correspondence with Lincoln?43 He painted Lenin as a great patriot. Marx and Engels, he argued, put forward a proposition that man can find a scientific explanation for wars, poverty, economic depressions, race prejudice and "organized force and violence." The last term used here suggests that the words were Dennis' rather than those of Marx or Engels and that Dennis was ___\_ 1434 R 3244. ’107 again converting terms from the indictment. To deve10p this proposition, he set out several contentions. 1. This historic mission would be carried out by the working class, the class destined to become the ruling class in all countries, and thus the creator of Socialism in all lands. 2. Subsequent to Marx's death, the Social Science he founded also deve10ped as well as modified some of its propositions. 3. Lenin enriched and continued Marxism by his explanation of the new social condition and phenomena brought about by the rise Of imperialism. "The devil can quote Scripture", Dennis told the jury, "and the prosecution surely will quote Marx and Lenin out of context in this court, but the defense will prove that these immortal classics are not blueprints nor directives." In developing this point, Dennis stated a basic contention of the defense: "Marxism—Leninism taught that certain propositions, as well as strategy and tactics, are modified to conform with the developments of history and new social situations.'l'44 After reviewing the faith and allegiance enjoyed by the Party (he claimed 70,000 members, approximately correct for that year, and Party principles subscribed to, at least in part, by several million American socialists) and reminding the jury that 60 million workers and 30 million farmers and their families could run the country better than the 60 families of Wall Street and the 250 ruling corporations and that the American workers in alliance with the majority of the Negro pOOple, and the working fhrmers and progressives, should and someday would bring about this fundamental change in 1444. a 3245. 108 existing social conditions, Dennis stated the second and most important sub—contention. "Marx and Lenin and their followers did not and do not advocate force and violence, but taught that force and violence result when reactionary minority groups, representing powerful vested interests, try to stop the march of progress." This might be recognised as the "evil plot" theory found in all demagoguery,but in the context of this trial it raises the central issue of whether Communist literature advocates violence against bourgeois governments or rather predicts violence from the propertied classes and the governments that these classes allegedly control. Dennis went on to offer two examples. He argued that this happened in the United States in 1776 and again in 1861. Other arguments offered to suppert this statement were: 1. That the Communist Party constitution held that Socialism should be established by the free choice of the American people. 2. That this fundamental change can be brought about only when both of two conditions have been fulfilled, a. when capitalism has fully outlived its usefullness, and b. when a majority of the American people,"I repeat, a majority-—led by labor and the Communists resolve to get rid of a system of social production that has become destructive of their right to life, liberty, and the pursuit of happiness." Ahmve all, he continued, we advocate and seek to insure that the American people will avert the tragedy of arriving at their inevitable Socialist future by the hardest of all possible routes, after passing through the tortures of Fascism, the Fires of a new world war, and the purgatory of national dishonor and disaster. Dennis then stated the thesis of his sub—issue: "The American people are menaced by the force and violence of fascism and atomic war and not by U. S. Communism." 109 In developing his third basic contention (that we eleven defendants and Foster became Communists as a result of a variety of circumstances and different experience), Dennis attempted to develop an ethical proof of communism for Americans. While stating that the Party owed much to Marx and Lenin, be argued that they had also learned much from Jefferson, Lincoln, Frederick Douglas, William Sylvia, and Eugene V. Debs. "These honored Americans gave voice to the democratic and some even to the Socialist aspirations of America's working people." Here he made good use of a quotation from Lincoln: We will show that our working class internationalists breathed the spirit expressed by Abraham Lincoln in the much-quoted words "The strongest bond of human sympathy outside the family relation should be one uniting all working people of all nations and tounges, and kindred." 145 He next developed an analogy to deal with the foreign connotations of communism by arguing that there was no more reason to reject as foreign the theories of advanced workers than to refuse our children pasteurized milk because it had been put through a process advocated by the Frenchman, Louis Pasteur. In concluding his opening statement, Dennis was both conciliatory and condescending to the jury. "I realize that the theories we Communists teach and advocate and the scientific language we use are strange and unknown to most, if not all of you." This brought into the courtroom the strange contradiction between an alleged popular social science, the tenets of which are supported by millions of working pe0ple throughout the world, and a private, esoteric, almost ”5 4 R 3248. 110 mystical rationale which very few people could interpret correctly. He reminded the jury that the defense will prove what the defendants actually supported in the 1945 resolutions. Here he raised again the spectre of fascism in drawing an apparent analogy with the current trial, by asserting that the Party "pledged to do all in our power to save our people and our country from the consequences of an.Americaaneichstag Fire trial, or an American version of Japanese thought control." His reference here was to his assertion that the prosecution was asking for what amounted to a preventative conviction. In his final argument, Dennis employed the interesting conversion of terms from the Smith Act and the language of the indictment used to argue his concepts. Here he used the expression "teach and advocate the duty and necessity" from the Smith Act to argue that the Party taught" . . . to prevent the force and violence of fascism, imperialists of war and lynching and anti—semitism." "We teach and advocate a program of peace, of democracy, equality, economic Security and social progress." He concluded with a some- what awkward "Thank you." We see then that the logical structure of this speech is characterized by three basic contentions, developed largely inductively by example and analogy. The structure of the contentions themselves, however, Were characterized by a conversion and a reification of the terms used. This type of definition derives from the Marxist's special view of the world, and it determined the complexion of the speech. Heard for the first time in the courtroom where the emotive style and the special bias words of Marxism-Leninism with its closed view of a society of mutually 111 antagonistic classes. Mr. Dennis spoke to defend "the liberties of the whole American people." He characterized the trial as a political "heresy trial." .He presented his Party as the front line of defense against war and fascism, which was argued to be a constant threat to American democratic society. The structure of the case he makes out would seem to be a basic one, but it is quite dependent on a sign relation— ship between what was stated in Party documents such as the draft resolution and the 1945 Party constitution and what the Party's actual policies and purposes might have been. Mr. Dennis' efforts to establish ethical proof with the jury and the general public were largely efforts to present the Communist Party of the United States of America and its ideas as both indigenous to the American experience and as quite necessary to the maintenance of democracy and social progress. He presented himself as one who had chosen to stand up in court and personally defend a great American working class political party and program. Yet there is about it the air of the anachronistic, of old world socialism, that must have sounded strange to at least some members of the jury. Few Americans had acquired the practice of seeing the world as a conflict between distinct economic classes, a view that Marxist rhetoric must sooner or later include. Interestingly enough, Dennis chose not to include any personal reference or biography, although his background would have been of some interest to the jury. He had a long and varied career as 112 seamen, itinerant worker, and labor organizer. But he was speaking here as a spokesman for the Party ("we Communists will prove . . ."), and it was the ethical proof of the American Communist Party that was to be established. The pathetic proof developed in this speech also was employed to develop an image of the Communist Party as the defender of the principles of Jefferson, Lincoln, and the working man from an all- pervasive plot on the part of the fascist warlords of the world and the economic rbyalists and hate-mongers who supported them. In this context, he could argue that the trial was a political persecution on the part of the capitalists and the "suberviant" Truman Government. Only in the light of this whole class struggle context did he challenge the indictment and the specific allegations of conspiracy. The arrangement was topical with an introduction featured by a . plea for a full and fair hearing (I represent myself because the issues are of great moment. . ."), a development of three basic ideas, and a conclusion restating certain value concepts. The order in which he developed his three major contentions suggested the Party's belief that the Party and Marxism were on trial and foreshadowed the defense effort to propagate and to defend Communism and the public activities of the Party with relatively less effort devoted to a defense of the defendants from the criminal charges they faced. In terms of Style, the speech was an interesting one, in that Dennis had a dual purpose in speaking and was, of course, a Marxist speaking to a non—Marxist audience. His pricnipal purpose in speaking could be said to be that of using the trial as a forum or platform 113 from which to state Communist theories and views, and to broaden the range of permissible issues in the trial. Essentially it was left to the professional lawyers to "actually " defend against the indictment. 'In trying to set out Communist political philosophy , it is fair to say that he had a problem in adapting his language to the audience in the jury box. One principal stylistic device was to convert the language of the indictment ("teach and advocate", "duty and necessity," ”force and violence") to a description of the capitalist system and Nazi and Fascist policy during World War II. He spared no words in using the typical Marxist language of invective and accusation (economic royalists, war mongers, greedy monopolists, American cartelists), nor of enlisting the Party on the side of the working man and the minority group ("Labor and the people, the Negro and Labor, working farmers and progressives.")146 Mr. Dennis' style can be seen as a particular form of Frederick Phil— brick's emotive style. George W. Crockett reported that this opening speech was read from manuscript?7 It is difficult to assess the immediate effect of this speech on the jury. It undoubtedly alerted them to the efforts the defense would make to broaden the issues of the case and to put the government on trial. Considering that America had never developed a tradition of Socialist thought and literature Great effort had been made by the defense to secure a "blue collar" jury. The jury finally empaneled was made up mostly of wage earners as opposed to salaried pe0p1e and included several Negroes. A Negro housewife from Brooklyn was chosen as foreman. 147 Letter from George W. Crockett, Jr., dated March 19, 1964, p. 1. 114 with an all-pervasive view of class struggle, and the mounting public apprehension of Communism in that year, the immediate effect was probably not a favorable one. The five remaining Opening statements by the five defense counsel served to introduce the ten remaining defendants and to set out certain issues in the trial. Crockett reports that "the attorneys divided up the issues to be covered and each selected the issue . . . that interested him:most.'l'48 These remaining opening statements proceeded in order with little colloquy. They all followed a pattern of first introducing the defendants which each counsel represented (the defendants stood and faced the jury as they were introduced) and then developing one or two selected issues. They all presumably spoke from the lectern in front of the judge's bench and facing the jury. For the defendants Stachel and Winter: George W. Crockett, Jr. Mr. Crockett is a tall, urbane Negro attorney from Detroit, Michigan. He was to prove to be one of the most scholarly of the defense counsel and the one most conversant with formal theories of public address. He graduated from the Negro high school in Jacksonville, Florida, and won the high school oratorical contest in his senior year. He served for two years as captain of the varsity debating society at Morehouse College in Atlanta, Georgia, where he minored in English. He reports that be debated approximately four colleges each year?48 In beginning his opening statement to the jury, Crockett introduced his two clients, Carl Winter and Jack Stachel. The brief biographies of these two men that he related to the jury were characterized by a 148 Ibid. 115 certain humility. Winter had been a draftsman by trade and had done some designing on the New Yerk City subway system during the period when he lived in New York. Crockett told the jury that during the depression Winter became interested in the teachings of Marx and Lenin and became the Communist Party's district organizer in Harlem. He organized Negro protests against the denial of relief to Negroes in Harlem during the depression period. He next came to Detroit, where, Crockett remJLked, "That is where I knew him." Winter was, at the time of the trial, Michigan State Chairman of the Communist Party. Crockett told the jury that he happened to be a Democrat himself, but that there were certain things that he and Winter believed in. These included sworn oppopition to white chauvinsim, Jim Crow laws, and poll taxes. The Court ordered him not to proceed on this line, saying that the beliefs of counsel were remote from the issues. Jack Stachel grew up in New York's lower east side and read the major social writers (Plato, Sir Thomas Moore, Marx, and Lenin were mentioned) at an early age. He was represented to the jury as some- thing of an authority on the writings of Jefferson and Lincoln. All of his life had been devoted to labor organizing. He organized the Unity Trade Union with William Foster in the early days before the C. I. 0. He was, at the time of the trial, National Education Director of the Communist Party. Mr. Crockett developed two basic issues, the first being the issue of free speech. The First Amendment, he told the jury, was "the law on which we rely as justification for everything that my clients have done or said or have influenced others to do or say.“ He then denied flatly that there had ever been any advocacy or teaching on the part of his clients of the necessity of overthrowing 116 the government either by force and violence or by peaceful means. In supporting this denial, he developed two arguments. First, he asserted that every act and every meeting referred to in the indictment was publicized in the party press. Second, he claimed that every action alleged in the indictment was preceded by a period of "public discussion" on the part of the members of the Communist Party "as to whether they agreed? He read to the jury the section in the Party constitution calling for discussion of policy matters. He next began to suggest to the jury what the defendants were 22; charged with; i.e., being agents of a foreign power, and spying. Judge Medina again stopped him, suggesting that he was laboring against "Straw Men???9 The second contention Crockett developed was the allegation that a political party was on trial. "We are trying the right of a group of people to orangize as the Communist Party." In discussing the purposes of the Party, Crockett surprised the Court by referring to the deposition the defense wanted the Court to take from the ailing William Foster. This was a question that had been argued before several times, and the Court had so far refused the request. He was later to allow it, however. At this point, however, Medina scolded Mr. Crockett for arguing a question of law to the jury. Crockett's conclusion featured appeals to duty, sympathy, and fair play. "I am aware that you are anxious to do your duty as jurors in this case. Doing your duty, of course, necessitates that you listen carefully to all the testimony presented by both sides.‘ He then suggested, presumably referring to the Foster deposition 1494 R 3258. 117 again, that the defense might be precluded from presenting some of otheir testimony. In thus soliciting their sympathy, he closed by assuring the jury that "we will do our best to bring before you every— thing that we believe has a bearing on the innocence of our clients." Mr. Crockett's opening was relatively brief (nine pages in the Record, including two pages of quoted material from the Party constitution). It was more conciliatory in tone that many of the others, and Crockett was respectful to the Court during the brief periods of colloquy. He probably made one of the better early impressions before the jury. For the defendant Winston: Louis F. McCabe Mr. McCabe, a burly, cheerfully aggressive labor lawyer from Philadelphia, was the senior member of the defense and was to have represented Mr. Foster and Mr. Dennis as well as Henry Winston. He also began his opening with a brief introduction and biography of his client. Winston, it seems, was attracted to the Communist Party through the struggle of that party to prevent the legal lynching of a young Negro in Texas. Out of this episode had come aclose re— lationship with leaders of the Party, Foster, Dennis, and others. Through his ability and hard work, the jury was told, Winston rose to leadership in the Communist Party. A position of leadership, they were reminded, that would probably have been denied to Winston, a Negro, in many other parties and organizations. Mr. McCabe apparently chose to deal in his opening with the nature of the proof in the case. He developed two basic points, stating first a position on Party literature and secondly a position on the credibility of witnesses in the case. In regard to Party literature, positions. Winston and sponsorship an outright other docume the responsi that literat' the Comnunis rtfliponsible : such as are 1 regularly co the Jury her Party were a In mov' McCobe seems “messes, th Hereminded t for them to d. to instruct t] little c0110q. in the ”Com atorial Datum he told the J1 that he is an H“ next ”so _ ‘ C . 1th 0r :5.“ SUggesmd t 118 literature, McCabe said that the defendants would take one of three positions. Some literature that the prosecution might introduce, Winston and his fellow workers would proudly claim authorship and sponsorship of. As to some documents, McCabe warned, there may be an outright denial of the authenticity of the documents. As to other documents, the authenticity may very well be admitted but the responsibility of the defendants or the Communist Party for that literature may be denied. Here he quoted from Article 14 of the Communist Party constitution, which held that the Party was not responsible for any political document, policy, book, or article except such as are issed by authority of the national convention and the regularly constituted leadership of the Party. He again reminded the jury here that the program and constitution of the Communist Party were adopted only after the most thorough democratic discussion. In moving on to the question of the credibility of witnesses, McCabe seemed to have been anticipating some of the government witnesses, the identity of several still being secret at this point. He reminded the jury that the credibility of a witness was entirely for them to decide. While this was true, it is a judicial function to instruct the jury, and McCabe had this pointed out to him in a little colloquy with the Judge. The reference was allowed to remain in the record, however. McCabe went on to characterize the conspir- atorial nature of some of the government witnesses he was anticipating. He told the jury, "One thing you know about the undercover witness is that he is an accomplished liar. . . Watch him closely.” He next characterized the type of person who abandons a group or society or church, the type of person he called a backslider. He suggested to the jury that they had probably heard from their grand— parents the Honk storie nuns, This colloquy fol the stories McCabe that they mu that the Par record, was r F0“ if you c; possibility 1 sPeflding all aProgram of lilliam Fostp “Milt dec “musing the cOnfront 9‘,” 1° the Jury t the SPEEChes For the De fen Mr, Sac labor lam-'91- 119 parents the stories of the Protocols of Zion or the so-called Maria Monk stories that were supposed to have been the stories of escaped nuns. This produced an objection from Mr. McGohey, and a testy colloquy followed in which the Court told him to "'just leave out the stories about the nuns and get to work?E0 McCabe was at his most persuasive when he suggested to the jury that they must judge the reasonableness of the government's position that the Party's entire public program, which was a matter of public record, was merely a sham to hide illegal activities. "We will ask you if you can read out of any of these actions any conceivable possibility that the persons who were engaged in those actions were spending all their time to simulate." Although, he told the jury, a program of socialism may seem radical to them, "Henry Winston, William Foster, these other defendants, as you will see, firmly, honestly, decently believe that in the principles that they are espousing they have found the best answer to the problems which confront every one of us every day." He concluded with an appeal to the jury to keep an open mind throughout the trial. This completed the speeches for March 21st, and Court was adjourned until March 22nd. For the Defendants Davis, Gates, and Potash: Harry Sacher Mr. Sacher was from New York and has referred to himself as a labor lawyer. He is a stocky, powerfully built man and was, from appearances, the youngest member of the defense. He was, at the 1504 R 3266. 120 same time, the most pugnacious and, at least from a layman's point of view, the most insubordinate. He first introduced his three clients by their political or organizational titles. Benjamin J. Davis, Jr. was then a member of the Council of the City of New York. John Gates was then editor of the Daily;Worker and the Worker. Irving Potash was then international vice-president of the Fur and Leather Workers Union, C. I. 0. Mr. Sacher's biographies of his clients were more extensive than those of the previous speakers. Benjamin Davis was introduced as the grandson of a woman who was born into slavery. His father had served as a National Committeeman of the Republican Party from Georgia. Through great family sacrifice, Davis had been sent to Amherst College and Harvard Law School. The jury was told that he was a member of the Federal Bar. He had served as defense counsel for Angelo Herndon in Georgia and Sacher made a point of telling the jury of the mistreatment that Davis had suffered from the hands of a southern white judge in that case. The jury was also informed that the Supreme Court of the United States finally gave Herndon his freedom. Davis also served on the defense in the Scottsboro case. He was elected to the New York City Council in 1943 and re—elected in 1946. He was, Sacher said, a man who had fought force and violence all his life. John Gates was presented to the jury as a young man, 35 years old that day. His parents had lost a candy store in New York City during the depression, and John, who was a brilliant student, was forced to leave the City College of New York. This, it was reported to the jury, had brought him into the Party. Employing some of the irony of the depression days, Sacher suggested to the jury that 121 Gates had been recruited to the Communist Party by "that great engineer in the White House, Herbert Hoover." Gates had fought with the Abraham Lincoln Brigade in Spain, rising to a rank equivalent to Lt. Colonel. He joined the American army after Pearl Harbor and became an instructor in the paratroopers. Sacher again employed irony in telling the jury that Gates, who had stayed in the reserve forces, had received his Honorable Discharge on January 17th, 1949, the day the trial opened! Irving Potash had been a furrier and labor leader all his life, and was then an international vice-president of his union. He gave significant testimony in the criminal trials of the labor racketeers Lepke and Gurrah, who had tried to take over control of the needle trades unions. Sacher told the jury that Potash's testimony had been instrumental in sending Lepke and Gurrah to prison and that the press had landed Potash for his testimony at the time. Sacher completed the biographies of his clients by telling the;jury that each client in his own way, and all collectively, had combatted force and violence throughout their lives. Here Sacher identified himself as a labor lawyer and told the jury that, from his experience, whenever an employer wanted to deny workers their rights, he always charged them with conspiracy! Next, he told the jury, he wanted to make ”a few observations concerning the charge which has been leveled." He developed two ideas, the first of which was the Free Speech concept. His position was that the defendants had only exercised their constitutional rights. Here be characterized the prosecution's charges as the weaving of a sinister plot, and Mr. McGohey as being "like the character in Dickens, 122 who wants to make your flesh creep." On the other hand, he told the jury, "We don't want to make your flesh creep. We want to appeal to your minds. We want you to have ideas." The second contention that he developed was that the Draft Resolution adopted by the Communist Party in 1945 gave the lie to the prosecution's charges. He argued that the Draft Resolution demonstrated that the Communist Party was 1) against war and for peace, and 2) in favor of the Economic Bill of Rights. In denying the allegation of sham, Sacher said, in the language of the union hall, that "whoever says that the words of the Communist Party constitution. . . are a blind .. . . lies in his teeth and lies in 151 his bowels." In concluding, Sacher appealed to the patriotism of the jury. He asked them to be worthy of the founding fathers of the Republic. "We ask you . . . to remain good Americans, to respect that constitution for which those who came before us fought and won a forcible and violent revolution." For the Defendants Green and Williamson: Abraham J. Isserman Mr. Isserman was from New York City and was, with Mr. McCabe, one of the senior men on the defense staff in terms of age. A spare, balding man, he gave one of the longer opening statements. His introductions and biographies of his two clients were quite brief. Both men, he told the jury, came from working class families. 51 4 R 3279. 123 Both were family men with children. Both had devoted themselves to the welfare of the American worker for twenty five years. Isserman's speech was the most direct and specific answer to the prosecution of the several defense Openings. It reviewed the indictment, paragraph by paragraph. It was essentially expositional and was the most workmanlike. He first talked about new ideas and their value. Using many examples, he developed the contention that new ideas in politics have been one of the mainsprings of American life. From examples, he argued that while we accept new ideas in the area of science, "we are not so clear about that when it comes to political conceptions." However, he argued, we can think about the time when l) chattel slavery was one of our institutions, 2) men went to jail for advocating the eight—hour day, and 3) men were charged as these.defendants are in this case with a conspiracy because actually they dared to form a labor union. The Supreme Court, he reminded the jury, had said that even our basic constitutional principles are flexible and must be adapted to a changing world. He assured the jury that ”the last word hasn't been said in our politics." His next major contention regarded the political nature of the charges in the indictment. "Because of that indictment, we have to deal here with political concepts, with principles of philosophy, and principles of science and principles of politics." He argued that his clients' devotion to principles and their lawful intent could and would be shown. He promised to show that his clients had demonstrated their intentions long before 1945. "You cannot work in a movement for 124 twenty-five years and not show what you intend by your actions.” He told the jury here that the defendant Williamson very early in his work in the Communist Party assisted in organizing the unemployed during the period of the depression. The defendant Green became interested in the Communist movement from his experience with certain civil righs cases. He had been “interested" in the Sacco— Vanzetti case, had worked on the Tom Mooney case in California and the Scottsboro case (presumably in a propaganda capacity). "Now," Isserman said, "after twenty five years of work and Marxist—Leninist principles, there is an indictment." He suggested to the jury that these defendants were on trial because they just happened to be members of the National Board of the Communist Party, and because the Communist Party had adapted certain principles. Here he referred to the allegation that Marxist-Leninist principles are found in "certain books" (four were mentioned by McGohey). Actually, Isserman said, these principles are found in hundreds of books written over a period of well over a hundred years. Marx and Lenin were compared in an analogy with Newton and Einstein. Then Mr. Isserman came to his thesis. "It is in the light of these problems that we have to look at the indictment." Beginning with paragraph 2 of the indictment, Isserman issued a flat denial of the charge that the principles of Marxism—Lenisism were the principles of the overthrow of the government of the United States by force and violence. "It never happened and never could happen." In reply to the allegation that Marxism-Leninism was a 125 guide to action for latter—day Communists, as McGohey had charged, Isserman apparently tried to turn the tables and establish grounds for the admissability of a great number of issues. He told the jury, "You must be concerned with . . . the actions of the defendants from the first day, or in April, 1945, to the last day, the day of the indictment in 1948. There is no other way." Paragraph 3 of the indictment referred to a meeting of the National Committee of the Communist Party on June 18, 1945, when the Committee considered the draft resolution. Isserman pointed out that the draft resolution was published in the Daily Worker at that time, and that one could buy it on any news stand. Paragraph 4 referred to the convention that followed later that summer. Isserman said that the draft resolution was amended at the convention, as it normally would be after democratic discussion. "That is why Mr. Dennis spoke to you about all those things-~they were from the draft resolution" Here Mr. Isserman briefly reviewed the contents of the draft resolution. "Again, I must warn you, it is not whether you approve or disapprove, but it is their right to propose these ideas, to teach and educate the American people which is at stake." Also, he reminded the jury, it is the right of the American people to hear these ideas! He then turned to McGohey's argument that certain phrases in the Party constitution were "mere talk", "empty phrases” inserted only for legal purposes. "Therefore, we have to meet that issue squarely. We say that these words are part of the living fabric of the day-to— day activities of these defendants." He insisted that that was one 126 of the essential issues of the case, and "we cannot keep out of this case the activities of the defendants in the three-year period we are talking about." Paragraph 7 alleged that the defendants held the responsibility for the party program and policies. Here Isserman assured the jury that, as Mr. Dennis said, the defendants would offer no alibis. That left the central issue of the case. "Did they, or did they not teach and advocate overthrow or did they carry out the principles and pledges in their constitution and in their resolutions." Isserman told the jury that there was a conspiracy clause in the Communist Party constitution which held that any person or any member who is engaged in any clique or party or group which conspires to overthrow or to do violence upon any of the America's democratic institutions is not elgible for Party membership, and if he joins such a conspiracy at a later time, be is subject to expulsion. Paragraph 8 referred to the Communist clubs. Isserman said that any organization that has national scope would have branches, or departments, or lodges, or whatever they might be called in the fraternal, religious or business worlds. He asserted here that the activities of these clubs were always in accord with the Party constitution. Paragraphs 9 and 10 dealt with books and classes and publications. Isserman made an offer of proof in regard to them. "We are prepared to produce before you every single edition of the Daily Worker on every single week day that it was published from April 1945 to July 1948, and every edition of the Sunday Worker, and you will look high and low for words of force and violence -- 127 except lynching, police brutality, fascist force and violence, etc. In concluding, Isserman also based an appeal on the Free Speech issue. In referring to a remark that Dennis had made, he argued that it was unthinkable that a jury of twelve people should be called up to judge a set of principles. "I cannot believe that this jury is going to say that that phase of American life [Eben people can expound and try every ideé] is over." He asked for a verdict of "Not Guilty." For the Defendants Hall and Thompson: .Richard Gladstein Mr. Gladstein was from San Francisco, California, and represented the one westerner among the defendants. He also gave brief biographies of his clients. Gus Arno Halberg (alias Hall) was born and raised in the iron range country of Minnesota. He was of Finnish descent. His- father had been an iron worker and a life-long member of the Communist Party. Hall himself had held many jobs in lumber, steel, and rail- roading. He had been greatly inspired by William Z. Foster and had become an organizer in the early steelworkers union. Gladstein here offered the biography of Foster as well, but be emphasized how difficult the early labor days had been for Hall and his family. His father had been blacklisted for his membership in the Communist Party. Robert Thompson's great—grandfather had been an Indian agent in Oregon, where Thompson himself had gone to work in the logging camps at the age of 13. Gladstein told the jury only that conditions in these camps were "beyond description." By 1933 Thompson was employed as a machinist in California and became a member of the Young Communist League and eventually a labor organizer. Mr. Isserman started at this point to tell the jury about the Spanish Civil War when he was 128 stopped by the Court. Gladstein did not argue the point, however, and was co-operative. Thompson, the jury was told, had joined the Abraham Lincoln Brigade, had commanded troops and had been wounded at the front and was returned to the United States. He had joined the United States Army in 1941, before Pearl Harbor. During the Buna Campaign in New Guinea, Thompson had been a daring and inventive patrol leader and had been awarded the Distinguished Service Cross. Gladstein also reported that Thompson had been assaulted by three men after the indictment was returned. McGohey objected to this, in that no causal connection was proven. The Court told the jury to disregard it. Mr. Gladstein began his discussion of the issues by denying the charge of teaching and advocating the overthrow of the Government. However, others, he said, had been guilty of force and violence, and he began a discussion of the Ku Klux Klan. Here an interesting colloquy developed in which Judge Medina used debate terminology to suggest what he felt was happening: ”It just turns the whole thing around so that instead of these defendants defending themselves against the charge by the government, they seem by your statement to be taking the affirmative and accusing somebody else. Now you are not going to try in this court anybody accused by the defendants. That is over now."l52 As it turned out, the issue was not settled but had at least been fairly stated. Mr. Isserman went on to suggest to the jury that his clients 52 4 R 3304. 129 were like anybody else, i.e., they were family men, they were intelligent, but that in one regard they were different. They had led selfless lives devoted to the welfare of others. Gladstein's opening dealt with two basic questions: the question of Party literature and the question of Party activities. In regard to the four bookds mentioned by Mr. McGohey, Gladstein pointed out that they had been written many years before the indictment was drawn up. The Communist Manifesto was over 100 years old, was studied in schools and colleges, and was to be found in libraries and bookstores everywhere. SEEEQIQEQIRevolution, by Lenin, was thirty years old, Foundations of Leninism was twenty years old, and the History 21 _t_h_e_ Communist 22151 .91 _t_l_1_e_ M Mwas then ten years old. He next told the jury that as the prosecution's case unfolded, they would be hearing and reading "force words" such as "revolution," "dlass struggle," "smashing the state apparatus," "forcibly destroying social conditions." He asked them to reserve judgment until all the facts were in. He based his appeal on an analogy with the term "industrial revolution" as it came to be used in England to describe the early changes of the industrial process. He argued that the term "class struggle" was used by many observers for decades to express their understanding of what takes place in our economic society. The important principle to keep in mind, he maintained, was that there is a difference between predicting that something may happen and actually advocating it. "You will have occasion here to contemplate the real and basic distinction between prediction that there might 130 be violence, on the one hand, and the actual advocacy of that violence, on the other." In regard to Party activities, Mr. Gladstein issued a denial that the change from the Communist Political Association back to the Communist Party in 1945 indicated a change from a policy of peacefully seeking Socialism to a policy of wanting it by violence. He then made several offers of proof. He told the jury that the defense would show that the Communist Party was democratically Operated, that it seeks to win members through trying to persuade them to the views of the organization, that the Party participates in political campaigns, that it runs candidates for office, and supports other candidates of other parties where there is agreement on some progressive platform. "You will learn of the sacrifices and the contributions that have been made by members and leaders of the Communist Party for all the working people of this country, and therefore, for all the peeple." He suggested that these men were on trial for having "dangerous thoughts." He told the jury that it was a trial of their right to hear what these men had to say. "What you will need in this case is to have historical perspective.£53 In beginning to sum up, Gladstein started to read a sentence from a Supreme Court decision. The United States Attorney immediately objected. Gladstein told the Court that he wanted to attribute a thought from the decision as his own. The Court was uncharitable in its reply. "That is most ingenious. You 53 4 R 3311. 131 go ahead. Having worked it out that way, you should deserve some re- ward, so you may go now and repeat it as yours and as coming from the Supreme Court as well." Mr. Gladstein: "Very well." The Court: "I hope it is good." Mr. Gladstein: "It is very important. I think . . . you will realize . . . that there is no occasion for lightness or levity about this sentence." The sentence offered to the jury was: If any provisions of the Constitution can be singled out as requiring unqualified attachment, they are the guarantees of the Bill of Rights and especially that of freedom of thought contained in the First Amendment. 154 Significantly, when Mr. Gladstein made the remark that "many poeple in this country may regard this case as the most important civil liberties issue in this generation," he received an immediate and angry objection from Mr. McGohey! In closing his speech, he also employed a patriotic appeal: "God save us all -- if any political administration, even though it represents the majority of the people, should ever, through bigotry or anything else, suppress or outlaw any minority group -- be it political or anything else." Further Statement by the Court to the Jury After Openings Immediately following Mr. Gladstein's opening, the Court announced to the jury that it had "some supplemental comments to make to you." He first discussed the subject of ideas. "You have heard in the course of these openings a considerable amount of discussion about ideas, 54 4 R 3312. 132 new ideas, old ideas, thoughts, and things of that kind. This indictment charges that . . . defendants . . . did conspire . . . to organize . . . and to teach and advocate . . .Now whether that is an old idea or a new idea or any other kind of an idea, such a conspiracy is against the law of the United States." Secondly, he discussed the problem of trying a conspiracy case. He asked them again to be patient and to remember, as jurors, that the eleven defendants were on trial, not as a group, not as a party, but as eleven separate human beings. "You have heard a lot about the hardships of these men's lives. I will allow a number of other things in evidence, merely as bearing on this question of intent." ‘When the Court had finished, Mr. Sacher asked Judge Medina to remind the jury again of the presumption of innocence the defendants enjoyed. The Court did this. The jury was excused at 3:30 p.m. on the 22nd, and an angry colloquy followed between Judge Medina and Mr. Gladstein, which was later joined by Mr. Sacher and Mr. Crockett. Defense counsel accused the Court of making remarks which constituted "nothing less than a rebuttal argument that might have been made by Mr. McGohey." The Court argued that defendants' counsel in their openings tried to convey to the jury that such a conspiracy as charged was perfectly all right. Mr. Gladstein asked for a mistrial on the basis of the Court's remarks. It was denied. We have seen that the opening statements of defense counsel have been less clearly organized than was the opening statement for the government. Motive material and broad political and social value concepts were used much more extensively. The principal difference 133 was to be found in the conflicting positions as to what were the real issues that the case presented for decision. Mr. McGohey made clear that the government charged a criminal conspiracy, and certain political literature and certain political events in the life of the Communist Party of America were mentioned in the indictment only because they were the alleged materials of the conspiracy that was charged. It was, then, essentially a political conspiracy rather than a criminal conspiracy in the ordinary sense. And Americans of that generation, or any generation, had little or no experience with that sort of thing. In reply to such a charge, defense counsel, as well as Mr. Dennis, could draw upon a great tradition of free discourse and political activity, and Mr. Dennis, in addition, could draw upon the record of all of the public activities of the Party during the past twenty five years. In that they had no bill of particulars to answer here, and were in the uncomfortable position of trying to prove a negative, (that they had not cbnspired) and in that Mr. Dennis was speaking out of a literature and tradition that actually predicted such trials as this one, the defense's decision to range far afield in search of larger political and social issues was understandable, above any propaganda motives that might have been operating. But at 10:30 A.M. the following morning, the 23rd of March, they came face to face with Louis Frances Budenz, a former official of their Party and the first witness for the Government. 134 CHAPTER IV THE CASE FOR THE GOVERNMENT INTRODUCTION This chapter will present representative evidence offered by the Government under the several counts of the indictment. The great num- ber of documents and the length of testimony of many of the witnesses present problems of rhetorical analysis. As the entire case in legal pleading may be thought of as a "speech" or rhetorical effort, Chapters Four and Five, which attempt to present the substantive cases of the Government and the defense, may be thought of as the "proof" steps in classical arrangement. In an attempt to correlate the offer of proof with the narration represented in the opening speeches, the material cases described in Chapters Four and Five have been structured on the counts of the indictment. Under each count, representative proof from the many witnesses and documents is described. An attempt has been made to present the most significant evidence relative to each count, as well as to represent the activities of the attorneys conducting the cases. The first prosecution witness took the stand on March 23, 1949; and approximately two months later, on May 19, the Government rested after having called thirteen witnesses. A great deal of Marxist literature was introduced into evidence through these thirteen primary witnesses. Two additional witnesses were called by the Government during the presentation of the defense case for the purpose of identi— fying documents. The principal witness, on whom the government relied for the theoretical part of its case, was Louis F. Budenz, then an assistant 135 professor of Economics at Fordham University. He was a member of the Indiana bar, but had never practiced law. Prior to joining the Communist Party in 1935, he had been engaged in labor organization work. Shortly after joining the Party, he became labor editor of the Daily Worker. In 1942 he was made managing editor, a position he held until he left the Party in October, 1945. He served on the National Committee of the Party from 1936 to 1940 and regularly attended meetings of the National Committee from 1935 to 1945, even when he was not on the 155 Committee. Other government witnesses who had been or were, at the time they testified, members of the Communist Party, were Herbert A. Philbrick of Boston, Massachusetts; Frank S. Meyer, a writer and lecturer then living in Woodstock, New York, who had been a member of the Communist Party of Great Brithin and later director of the Chicago Workers School; William O. Nowell, a Negro living in Washington, D. C.; Charles W. Nicodemus of Dawson, Maryland; Garfield Herron of Hot Springs, Arkansas; Angela Calomiris of New York City; Thomas A. Younglove of St. Louis, Missouri; William G. Cummings of Toledo, Ohio; John V. Blanc of Cleveland, Ohio; and Balmes Hidalgo, Jr., of New York City. The preponderance of the Government's case was designed to demon— strate the central issue of the defendant's intent. The critical ques- tion here, as the Government saw it, was not only the "fair meaning of the words used," in the Marxist—Leninist writings that were introduced, 155 4'R. 3342—5 R. 3374. 136 156 but "how did these [defendantgl understand and apply them." For this the Government relied heavily on the testimony of the seven witnesses who attended the Party classes and schools during the 1945- 1948 period. The testimony of these witnesses tended to show that Party members were educated in the concept that only by force and violence can Communists acquire control of the Government of the United States and establish a dictatorship of the Proletariat, and that this is the role for which they were being trained. In support of this contention, the Government relied heavily on two documents which were undisputed (one was introduced by the defense). These were Government exhibit 51 and defense exhibit 9 x Z, which were Party training outlines or study guides containing the basic funda- mentals of Marxism—Leninism?57 The indictment consisted of one allegation or count of conspiracy, although it charged that the defendants conspired to do two things: to organize the Communist Party as a society of persons who teach and advocate, and to "knowingly and wilfully to advocate and teach." This allegation is followed by Section 2 of the indictment, which consists of nine specifications, or specific allegations, which together refer to the acts which construct the alleged conspiracy. This Chapter will suggest the principal facts and circumstances produced in the Govern- ment's case, under each of the nine specifications and Chapter 5 will 156 United States Court of Appeals for the Second Circuit, United States of America, Appellee, v. Eugene Dennis et al, Appellants,(Brief for the United States), p. 130. Hereafter this Brief will be referred to as Gov't. C. A. Brief. 157 Exhibit 51 is printed at 19 R. 14823—78. Exhibit 9 X Z is printed at 20 R. 15449—503. 137 suggest the reply made by the defense to the specifications. Specification 1. It was part of said conspiracy that said defendants would convene, in the Southern District Of New York, a meeting of the National Board of the Communist Political Association on or about June 2, 1945, to adopt a draft resolution for the purpose of bringing about the dissolution of the Communist Political Association, and for the purpose Of organizing as the Communist Party of the United States of America a society, group, and assembly of persons dedicated to the Marxist-Leninist principles of the overthrow and destruction Of the Government of the United States by force and violence. Evidence was introduced showing that the Communist International 158 was formally dissolved for political reasons in January, 1944. Following this, Budenz testified, steps were taken to dissolve the Communist Party of the United States. On January 7—9, 1944, Earl Browder, then General Secretary of the Party, read a report at a meeting of the National Committee in New York City. The report called for dissolving the Party and abandoning the task of "immediately pushing" the United States into socialism. Rather, based on Browder's assump- tions in regard to the Teheran accord, his program called for collab- orating actively with the most democratic and progressive majority in the country for a program of national unity calculated to achieve peace and prosperity in the post-war period. It was shown that the National Committee "unanimously" approved the Browder program and called a special National Convention in May, 1944, to act on it. Foster Opposed the program but was persuaded not to express his Opposition at the meeting. Foster, who was then National Chairman of the Party, addressed a letter to the National Committee, but it was not submitted. At a meeting of the National 15s 5 R. 3561. Also see Exhibit 12A, p. 7, 19 R. 14557. 138 Board on February 8, it was decided that Foster's letter should be "suppressed." The defendant Davis had later reported to the witness Budenz that Foster had been given a "good shellacking" in the meeting and that his only recourse was to appeal to a "higher authority." 159 Testimony related that the Special Convention of the Party Opened on May 20, and the Browder proposal was immediately taken up. Foster presided as chairman. Defendant Green spoke in favor of the motion to dissolve the Party, and the motion carried "unanimously.'l'60 On the same day, in the same hall, the same men and women constituted them— selves a new convention, which created the Communist Political Association. At the convention, Browder called for a program of national unity broad enough to include both capital and labor?61 Evidence showed that defendants supporting the Browder proposals at the Convention were Dennis, Williamson, Thompson, Davis, Green, Winter, Hall and Foster; Browder was elected President of the new Association. Davis, Dennis, Green, Thompson, and Williamson were elected Vice—Presidents. Williamson was elected Secretary. Most Of the defendants, including Foster, were named to the new National Committee. It was shown that the writings Of Browder came into wide use during the period Of the Communist Political Association, replacing 162 the writing Of Marx, Engels, Lenin, and Stalin. Budenz testified 1595 R. 3490—3493. 160Exhibit 9, p. 141, 13 R. 10059. 161 Exhibit 9, pp. 15-31, 5 R. 3498—3502. 162 Exhibit 17, p. 629, 5 R. 3581. 139 next that Dimitri Z. Manuilsky, formally General Secretary of the Comintern, was chief delegate Of the Ukraine Delegation to the United Nations Conference at San Francisco in May Of 1945. Manuilsky had sent word to the American Party leaders, through Joseph Starobin, a Daily Worker correspondent, that he was dissatisfied with the American Communists for not having been more critical of the American Government, and that the "French comrades" had been given the commission to in— struct the American comrades on "how to act in these matters."163 On returning to New York, Starobin met with the defendat, Stachel, on or about May 21, 1945, to discuss an article by Jacques Duclos, General Secretary of the French Communist Party. The article had appeared in the April, 1945, issue of the Official French Communist theoretical magazine, Cahiers g3 Communisme, and was entitled "On the Dissolution of the Communist Party Of the United States." On May 24th, the English text was published in the Daily Workerl64The article condemned the Browder program of class peace as reflected in the Communist Political Association as "notorious revisionism," which violated the most fundamental principles of Marxism-Leninism. The witness Budenz defined "revisionism" as "the error which flows from the belief in peaceful progress towards socialism or toward the future what- ever it may be." The term is applied against anyone ”who distorts the Marxist-Leninist position that the sole way to progress is by the violent revolution, the shattering by violence of the apparatus of the bourgeois states, the capitalist states, and the setting up Of the 1635 R. 3514. 164 Exhibit 12A, 19 R. 14557. l _ i h. 'l'-mfi._i‘bS-” 140 165 dictatorship of the proletariat. Revisionism was described as the changing about and distorting Of Marxism-Leninism so that the idea of revolution is blunted and which "again leads to all sorts of tactical difficulties, mistakes along the way, according to the Communists." The Duclos article, Budenz testified, received immediate acceptance among the American Party leaders, except for Browder. The National Board met on June 2, and adopted a draft resolution criticizing the Browder period as revision of basic Marxist-Leninist theories and calling for action to "overcome our errors and mistakes" and the "opportunism" which had crept into the Party's ranks. Budenz defined "Opportunism" as "the Offense which comes from not following the strict revolutionary Marxist-Leninist line. It has a wide interpretation as all Communist phrases have, but it applies particularly to those who base their original philosophy on parliamentary action as Opposed to revolutionary action, and from that proceed to soften their activities."166 The Board next convened a meeting Of the National Committee, calling for discussion Of the Resolution condemning Browder's class peace and directed that "during the entire period Of the discussion, the policy and practical mass work of the Association shall be governed by the Resolution of the National Board.%67 Thus, the Resolution, which out— wardly had been ordered for discussion by the members of the Associa— tion, was made the fundamental law Of the organization even before the discussion began. 1655 Re 3585. 66 5 R. 3567. 167Exhibit 13A, p. 4, 5 R. 3550. 141 Specification 2. It was further a part of said conspiracy that said defendants would thereafter convene, in the Southern District of New York, a meeting Of the National Committee Of the Communist Political Association on or about June 18, 1945, to amend and adopt said draft resolution. The Government's case showed that on June 8, 1945, Party Secretary ‘Williamson summoned the National Committee to meet on June 18—20, to consider the Draft Resolution Of the National Board with a view to "uncovering the source of the opportunist errors" dealt with in the resoluti0:?8 The reports of various defendants to this National Committee meeting were subsequently published by the Party, and these published forms of their statements were introduced in evidence. The text Of defendant Green's speech to the Committee is found at page 591 Of a booklet entitled "Political Affairs," dated July, 1945, and re- printed in Volume 19 Of the Trial Record, entitled Court's Pretrial and Government's Trial Exhibits, at page 14624. Foster's report, entitled "On the Question of Revisionism," was printed at pages 7—8 Of the Daily Worker of July 8, 1945 and appears as Government Exhibit 22A at page 14695 Of Volume 19 of the Trial Record. Dennis' report, an- titled "Some Aspects of Our Policies and Tasks" appeared at pages 7—8 Of the Daily Worker of July 1, 1945 and at 19 R. 14660-14681 in the Trial Record. Foster called for eliminating the "scars Of Browderism" by a "process of Leninist education." Dennis urged a return to the Marxist— Leninist classics, for ”our Marxist-Leninist theory and practice must 169 be inseparable." Only Browder, it was shown, voted against the 168 169 . Exhibit 21A, p. 8, 19 R. 14672. Exhibit 16, 5 R. 3568—69. 142 170 Draft Resolution. The Resolution, entitled ”The Present Situation and the New Tasks," was printed at page 579 in the July, 1945, booklet "Political Affairs," and is found as Government Exhibit 17, at 19 R. 14608—14624. It was further shown that the National Committee called a special convention to convene July 26, 1945, which in turn established a Secretariat comprised of Foster, Dennis, and Williamson "empowered with full authority" to speak and act for the Association. Browder, the. President of the Communist Political Association, was thus shown to have been stripped of his functions more than a month before the special convention met. The National Committee also created a committee, in- cluding Dennis, Thompson, and Williamson, to make a political examina- tion of the leading Officials of the Association and to propose recom- mendations for "refreshing the national leadership.i7l The months of June and July, 1945, were dedicated to repenting for the period of Browderism and to pointing the way back to the old program. For ex- ample, defendant Thompson, writing in the Daily Eggkgg of June 16, 1945, undertook, publicly, to condemn himself Of his "errors" and those Of the National Board. He had not "yet" arrived at an explanation for his errors and those of his colleagues, he wrote, but he was satisfied that he had erred. He had been guilty of drawing ”superficial con- clusions" and of a "very superficial understanding of the past history 172 of our Communist movement. 17oExhibit 18A, 5 R. 3591. 17118A, p. 2, 5 R. 3592. 172Exhibit 15A, p. 7, 19 R. 14602—14605. 143 Budenz also testified that the staff of the _l_)_a_i_l_y W listened to prolonged debate on the question of whether the United States was so hopelessly capitalistic that a revolution could not be achieved here without "the help of the Red Army." Budenz testified that the defen- dant Stachel took part in these debates and that the defendants Dennis and Williamson were in attendance from time to time. Gerhart Eisler, alias Hans Berger, the then "unofficial" Communist International representative in the United States, had "determined" in these debates that the view that the help Of the Red Army would be needed in achiev- ing a socialist revolution hereewas "permissible.£73 SpecificatiOn 3. It was further a part of said conspiracy that said defendants would thereafter cause to be convened, in the Southern District Of New York, a special National Convention Of the Communist Political Association on or about July 26, 1945, for the purpose of considering and acting upon said resolution as amended. It was shown that on July 26—28, 1945, 93 members of the Communist Political Association met as delegates to a Special National Convention and undid what had been done in the previous convention in May, 1944. Defendant Potash presided as permanent chairman of the convention. Defendant Williamson was in charge of preparing a new constitution; and Winter, Dennis, and Green prepared the Preamble to the Constitution?74 Defendants Green, Dayig, and Winter were shown to have been on the Resolutions Committee. The keynote address was delivered by William Foster. He called 1735 R. 3557—3559. 174 14 R. 11274—11275. 175 14 R. 11295. 144 for training the Party in the fundamentals Of Marxism-Leninism, which he claimed Browder's program had rejected, and for reconstituting the 176 Communist Party. The delegates voted 92 to l (Browder) to reconsti- tute the Communist Party, and abolish the Communist Political Association. A resolution was adopted which recognised that "the formation of the - Communist Political Association was a liquidation of the independent 177 and vanguard role of the Communist movement." The convention adopted a constitution calling for the establishment Of a dictatorship of the proletariat in the United States and dedicating 178 the Party "to the principles of scientific socialism, Marxism-Leninism." Budenz testified that the quoted words as historically used throughout the Communist movement meant that . . .The Communist Party bases itself upon sO-called scientific socialism, the theory and practice Of so-called scientific socialism as appears in the writings of Marx, Engels, Lenin and Stalin, therefore as interpreted by Lenin and Stalin who have specifically interpreted scientific socialism to mean that socialism can only be attained by the violentcshattefing of the capitalist state, and the setting up of a dictatorship of the proletariat by force and violence in place of that state. 179 The convention also "unanimously" elected a national committee Of 55 persons who were empowered to set policy between conventions. All Of the defendants were named to the committee. A national Board ; 76 1‘ Exhibit 25A, pp. 788-789, 19 R. 14735-14736. 177 Ibid., p. 829, 19 R. 14787. This exhibit is a Resolution Of the National Convention Of theCommunist Party of the United States of America, adopted July 28, 1945, and entitled "The Present Situation and the New Tasks." It is quite the same document as the earlier Draft Resolution. 178 14 R. 11214. 79 5 R. 3637-3638. 145 of eleven members included the defendants Dennis, Williamson, Thompson, Davis, Stachel, Potash, and Foster. Foster was named National Chairman; and Dennis, Williamson, and Thompson were named with him to form a National Secretariat. By unanimous vote, Browder was given no Office and was expelled from the Party shortly after the convention}80 State conventions were shown to have ratified the decisions of the Special National Convention and members Of the Communist Political Association who had been members Of the Communist Party automatically became members of a new Communist Party. Specification 4. It was further a part of said conspiracy that said defendants would induce the delegates to said National Convention to dissolve the Communist Political Association. The months of June and July, 1945, were shown by the Government's case to have been months of intense activity dedicated to repenting for the period of Browderism and to pointing the way back to the old program. Local units of the Communist Political Association, guided by visits from Officials Of the National Office, rapidly joined their national leaders in adOpting the new line condemning the Browder policy. Dele— gates instructed to support the Duclos position were selected to attend the national convention in New York City, according to several Government witnesses?81 The nation leaders of the Party, with the exception of Foster and Browder, were shown to have engaged in a period of self- 182 criticism for having abandoned Marxism-Leninism in the preceding year. 80 13 R. 10065. 181See 6 R. 4179 and 8 R. 5966-5967. See also 12 R. 9379 and 14 R. 11058. 182 See Exhibit 17, pp. 591, 630-631, 19 R. 14608, 14624. See also defen- dant Thompson writing in the Daily Worker, Exhibit 15A, p. 7, 19 R. 14602-14605. 146 While some Communists were busy publicly cleansing themselves, others were shown to have been concerning themselves with the implica- tions Of the new line. At the Jefferson School of Social Science a faculty which had expressed some support for Browder adopted the con- trary position after defendant Stachel made it clear to them that the 183 party leaders were agreed that Browder was wrong and Duclos was right. Foster's keynote report told the convention that the ”sudden switch in Party opinion" meant that "our Party has suddenly reverted to 184 its basic Communist principles." Several Government witnesses testified that the National Convention was followed by reconvened state conventions which formally approved the action of the National 185 Convention. Specification 5. It was further a part Of said conspiracy that said defendants would bring about the organization of the Communist Party Of the United States of America as a society, group, and assembly Of persons to teach and advocate the overthrow and destruction Of the Government Of the United States'by forcegand'viélence, and'would cause said Convention to adopt a Constitution basing said Party upon the principles Of Marxism-Leninism. The defendant Williamson had written in August of 1945 that "it is essential that we quickly orientate toward the establishment Of a well— knit Communist organization, based on the tried Leninist principles Of organization, adOpting those organizational forms and methods which will correspond to our tasks and insure the speedy elimination of all liqui- dationism, all social-Democratic practices, methods and forms of 1836R. 4522-4525. 18 4 Exhibit 25A, p. 788, 19 R. 14735. 185 See 6 R. 4179 (witness Philbrick), 7 R. 5703 (witness Calomiris), and 8 R. 5967—68 (witness Blane). 147 186 organization developed in recent years." A Manual 33 Organization, 187 by J. Peters, was received in evidence against the defendant Stachel. The manual was shown to have been issbed by the Party in 1935 and con- tained a preface by Stachel stating that it sets forth the fundamental principles of Leninist organization. The prosecution drew particular attention to the discussion of the principle of "democratic centralism." The constitution Of the Party called for clubs, sections, and districts or States. Theoretically, the highest authority of the Party is the National Convention, which the constitution requires shall be held every two years. During the three-year period preceding the return of the indictment, there was no convention after the 1945 convention which reconstituted the Party?88 Between conventions the National Committee, which is elected by the convention, is the highest authority of the Party according to Articles 7, Section 6 Of the Party Constitution. The constitution re- quired the National Committee to meet at least three times a year. Between sessions of the National Committee, the National Board is charged with the responsibility of carrying out the decisions and work of the National Committee and is the leading authority Of the Party?89 The National Board is elected by the National Committee and is respon- 190 sible for all its actions to the National Committee. The policy 186 Exhibit 103, 7 R. 5713, a letter to state and district chairmen and secretaries, dated August 23, 1945. 8 1 75 R. 3447. 88 9 R. 6858. 1899 R. 6746. 190 5 R. 3674. 148 decisions Of the National Committee and of the National Board are trans- mitted to the various local organs of the Party and must be carried out regardless of whether the local officials agree with thei?1 Article VIII of the new Party Constitution provided for a National Review Commission. It was appointed by the National Committee and its decisions were to be subject to review by the National Committee or Board. It replaced the Old Control Commission. As an example of the Commission's authority, the Government witness Cummings, elected a member of the Ohio State Committee by the state convention, was re- quired to submit himself to detailed examination by the Commission to test whether he should be permitted to hold that Office. The Commission required information--to be kept "strictly confidential"—-concerning the most minute details of his life, ranging from his race tO his Party names and activities and including his personal and family back- ground, trade union and mass organization participation, and the position he tOOk in the pre-convention period immediately prior to the reconstitution Of the Party. The information was supplied in writttlergl2 form and was subsequently produced in court as defense exhibit XXXX. AesOpianism: The Use Of Protective Language in the Party's Constitution The witness Budenz testified that Lenin referred to Aesopianism in a preface to his 1916 pamphlet "Imperialism." The publisher of the pamphlet in the United States, International Publishers, which Budenz identified as an arm Of the Party, explained Lenin's reference as 191 Defendant Green so testified at 10 R” 7549. 192 8 R. 5925-5928. See also Exhibit 117, 8 R. 5788. 149 follows: “Aesopian," after the Greek fable writer Aesop, was a term applied to the ellusive and roundabout style adopted in 1egal"pub1i- cations by revoluntaries in order to evade the censorship.']'93 Budenz testified that when the Party was reconstituted in the United States, it adOpted that technique of using language which appears innocent on its face to mean something quite different to those in the Party. The Government directed the jury's attention to the following statement from the Preamble to the new Party Constitution: "The Communist Party upholds the achievements Of American democracy and de- fends the United States Constitution and its Bill of Rights against its reactionary enemies who would destroy democracy and popular liberties." Budenz testified that to those in the Party when the Constitution was adopted "reactionary enemies" meant "those who are opposed to the Communist movement in the Soviet Union just as democrats are those who are with the Communist Party Of the Soviet Union in Communist language. In the Soviet Union, Soviet dictatorship is interpreted as the highest stage of democracy.’l'94 Article IX, Section 2, which provides for expulsion for any member who conspires or acts to subvert, undermine, weaken, or overthrow any or all institutions of American democracy, was, Budenz testified, "purely Aesopian language for protective purposes to protect the Party in its activities before courts of law in.America while it could continue the 195 theory and practice of Marxism-Leninism." He testified that its 193 Exhibit 27A, 5 R. 3646-3647. 94 5 R. 3647-3648. 1955 R. 3707. 150 character as protective language had been discussed at a National Committee meeting and it was shown that the provision in question was derived from a similar provision in the 1938 PartyConstitutionf96 Yet in 1938, the Government pointed out, the Party was affiliated with the Communist International and was bound to the program of the International for the violent overthrow of capitalist states and for the establishment of dictatorships Of the proletariat in their place. Also in connection with Specification 5 it should be remembered that, theoretically, the highest authority of the Party was the National Convention, which the Constitution requires shall be held every two years. As the Government proved, during the three—year period preceding the return of the indictment, there was no convention after the 1945 convention which reconstituted the Part;?7 Democratic Centralism: Leninist discipline as seen in the monolithic structure of the Party. Government Exhibit 30, The History 2: the Communist Party 3f thg Soviet Union (Bolshevik), showed that the Soviet Party in 1917, two months before the October Revolution, "adOpted new Party Rules," which provided that "all Party organizations shall be built on the principles Of democratic centralism, which included the rule that "all decisions of higher bodies shall be absolutely binding on lower bodies and on all Party members." At the Special National Convention in July of 1945, when the 96 Exhibit 29, Article VI, Section 1, 5 R. 3709—3710. 1979 R, 6858. See also the cross—examination of the defendant Winston, 15 R. 11916—11917. 151 Communist Party of the United States of America was reconstituted, defendant Williamson advised the convention that they would nO longer neglect "the time-tested Communist principle of democratic centralism," and that Articles VI and VII of the Constitution dealing with the structure and national organization Of the Party embodied that 198 Principle. Article IX of the Constitution provided that violation of the decisions of the leading committees may be punished by censure, removal from posts of leadership, or by expulsion from membership. Defendant Davis testified that even if he disagreed with a decision Of the National Board, he would, as a disciplined Communist, carry it 199 out because "I accept that when I join the Communist Party." Specification 6. It was further a part Of said conspiracy that said defendants would bring about the election of officers and the election of a National Committee of said Party, and would become members of said Party, and be elected as Officers and as members Of said National Committee and the National Board of said Committee, and in such capacities said defendants would assume leadership of said Party and responsibility for-its policies and activities, and would meet from time to time to formulate, supervise, and carry out the policies and activities Of said Party. It was shown that in July, 1946, the National Committee, with all 200 defendants as members, reorganized the national leadership. Dennis was appointed to Browder's post of General Secretary. Winston was elected to the Board, replacing Williamson as Organizational Secretary, and he was added to the National Secretariat. Williamson was named 198Exhibit 25A, p. 810, 19 R. 14762. 199 11 R. 8530. 20 0Exhibit 43A, 6 R. 4238. 152 Labor Secretary, and Stachel was placed in charge Of the Department Of Agitation, Propaganda, and Education. Davis was named chairman of the Legislative Committee. Thompson was named New York State Chairman. In June Of 1947 further changes were made. Winter, Gates, Hall, and Green were elected to the National Board. Gates was appointed editor for the 22; y Worker. Green became state chairman in Illinois, Hall in Ohio, and Winter in Michigan. The National Secretariat was reduced in size to twO--Foster and Dennis. It was shown that during the year preceding the indictment, all defendants and Foster constituted the National Board, the controlling body of day-tO-day Operations. The Government produced considerable testimony and documentary evidence to show that the placing Of certain defendants as state chairmen of key industrial states was in pursuit of a policy of developing the Party in "concentration areas" and that the policy was pursued by the methods of "democratic centralism." It had been shown that Gus Hall had been "elected" to the office of State Chairman for Ohio in 1947. The Government witness William Cummings testified that members of the state committee were notified of a state committee meeting and that "the national committee recommended that Gus Hall be elected as State Chairman of the Party in Ohio.301 The state committee "unanimOusly" accepted the recommendation. It was also brought out that defendant Winter served as an Official of local party organizations in Ohio, Minnesota, and California before 202 he was sent to Michigan to become state chairman there. It was shown 201 8 R. 5830. 02 14 R. 10985—10986; 15 R. 11404-11411. 153 that defendant Green gave up his post as state chairman in New York to gO to Illinois and become state chairman theric.)3 In Illinois, the state convention meeting shortly after the reconstitution of the Party in July, 1945, was informed by the national office that Green was "available" to head the Party in Illinois?04 This practice of the national leadership to assign leaders to the various local units of the Party was shown to be one of long standing?5 In his report to the 1945 National Convention, Defendant Williamson called for greater efforts to develop members in "concentration areas." In this report, he said, "To achieve this, we shall shift forces, including key national 206 forces, into the leadership of concentration districts and areas." 207 He subsequently reported that this had been done. Several Govern- ment witnesses testified as to direct knowledge of the policy of con- centration on basic industry?08 In addition to the policy-making functions, the national organiza— tion of the Party was shown to function through various departments and commissions which are responsible for the execution of policy. Here again, defendants were shown to have assumed leadership and responsibil- ity for Party policies and activities. As an example, the Government 203 9 R. 7220. 204 12 R. 9386—9388. 205 See 6 R. 4639 and 12 R. 6892—6893. 06 Exhibit 25A, p. 814, 19 R. 14768. 207 Exhibit 430, p. 816, 6 R. 4248—4249. 208 See Exhibit 125, 8 R. 5850 and 6 R. 4251-4252. 154 demonstrated that the Daily Worker was subject Officially to the direc— tion Of defendant Gates as editor and defendant Davis as president of 209 the parent publishing company. Unofficially, the defendant Stachel, head Of the Department of Agitation, Propaganda, and Education, function— 210 ed as "political editor." Budenz testified that, during the period when he was managing editor of the Daily Worker (1941—1945), his work was supervised by a member of the National Board, (at various times, the defendants Dennis, Stachel, and Foster). Reports in the Daily Worker 211 of Party meetings were "severely edited." Specification 7. It was further a part of said conspiracy that said defendants would cause to be organized Clubs, and District and State units of said Party, and would recruit and encourage the recruitment of members of said Party. The Government's evidence seemed to show that during the period of the Communist Political Association, activities appeared to have been Openly conducted. The witness Calomiris testified that members used their full names, club meetings were Open to non-members, and (minutes of the proceedings were regularly kegt? The reconstitution of the Party, however brought an end to these practices. Minutes were not kept, members were referred to by first name only, and meetings were 213 closed to non-members. The witness Cummings testified that at the 1945 209 . Exhibit 45c, 6 R. 4255—4256. 210 13 R. 10519-10520. 211 5 R. 3580, 5 R. 3993-3994. 212 7 R. 5054—5055. 213 6 R. 4159, 6 R. 4479—4480, 7 R. 5079. 155 Ohio State Convention, delegates voted for candidates for election to the State Committee, some Of whom were identified only by false names or by first names and the initial letter Of the last name?14 The witness Philbrick testified that in September, 1947, he was transferred to a Party club in Boston, Massachusetts, which was composed Of approximately seventy businessman, teachers, lawyers, and other professional people. The club was designated "Pro 4.”215 Shortly thereafter, he testified, the club received instructions from state headquarters that for security reasons the club would be divided into groups of five or less members. No members of a group were allowed to have contact with members of another group, and all were instructed not to have contact with the state Office of the Party. The members of the group used only their first names. On two occasions after the professional clubs had been subdivided for security reasons, they had practice mobilizations 0f the entire membership for the purpose of testing the means Of rapid communication within the organization "to enable us to get together quickly in case of an emergency.'2'16 As a member of the "pro—group," Philbrick testified that he was not permitted to be an Open subscriber to the Daily Worker, nor was he, or any fellow member, issued a membership card?17 The period before the Communist Political Association was also vitally concerned with security. Budenz testified that when he joined 14 7 R. 5708-5709. 215 5 R. 4148. 16 6 R. 4159. 217 6 R. 4252. 156 the Party in 1935, the defendant Stachel told him that the decision whether he would Operate as an Open member Of the Party or as a concealed member would be made by Browder, who was then General Secretary. When Browder returned to the United States from the Seventh Congress of the Comintern, he directed that Budenz become an Open member.218 During the period of the Hitler—Stalin Pact, the defendant Williamson was shown to have dropped out of open Party work and to have become an underground worker, according to Budenz' testimony?19 In this same period, Budenz continued, the defendant Dennis met with Party Officials . in a Chicago cellar and disclosed plans to take the Party underground, to destroy Party records, and to divide the members into groups of five in the event that the United States entered the war against Germany?20 The witness Nicodemus testified that in 1940 his club was broken down into groups of five, and in 1942 the witness Calomiris' club was similarly divided for security reasons.221 During the period of the Communist Political Association, the clubs were organized along community lines; but when the Communist Party was reconstituted, the community clubs were reduced in size and there was a return to the shop club form of organization which had existed prior to the C. P. A. Defendant Williamson had written that the shOp form of organization had been readopted to strengthen the Party's ties with workers in basic industries and to facilitate the 2184-Ru 3345-3348. 219 5 R. 3719—3720. 220 5 R. 3671. 221 6 R. 4790, 7 R. 5026. 157 222 Party's program of concentration in the basic industries. Budenz testified to the Party's purpose in directing its efforts to workers in basic industries as follows: The establishment of the Party in the basic industries was in order to be able more effectively to bring about militant activity of the working class as they defendants Stachel, Dennis and Williamson stated and from that-from the basic industried, to be in a better position to establish the dictatorship of the proletariat when the proper time arrived. 223 The Government witness Younglove testified that in June, 1946, Otto Wangerain of the National Organization Department met with Party members in Missouri for the purpose of developing plans for railroad concentration. ‘Wangerain was reported to have quoted Lenin as saying, "We could never hope to have a successful revolution without the rail- 224 road workers with us." The witness Hidalgo testified concerning an interview with a subordinate Party official, Mrs. Cane. He was apparently required to submit himself to appraisal by Mrs. Cane before he was admitted to membership in the Party. There was some discussion concerning revolution in the United States, which the Government contended was calculated to test the recruit to determine whether he had a stomach for Communist Party work and could be accepted as a trusted member in the Party of the proletarian revolution. A few days after the interview, Hidalgo was notified that he could attend a meeting 225 of the "Tom Paine Club" of the Party, of which Mrs. Cane was an executive. 222 Exhibit 25A, (Political Affairs, Sept., 1945, p. 809), 5 R. 3661. 223 5 R. 3663. 224 7 R. 5505. 225 8 R. 6119—6123. 158 The witness Cummings testified regarding an Ohio State Committee meeting at which the defendant Hall lectured the Party Officials on security and criticized them for having come to the meeting by auto- mobile "because it is much easier for them to be followed if they come by car or come in groups." He warned them that it was his view that the National Committee should expel members "who do not carry out the decisions of the National Committee in regard to security."226 Through the testimony of these witnesses, the Government not only established the organizational nature of clubs and district and state units, and the recruitment practices of the Party, but also established the clandestine nature of the Party during the period of the indict— ment. Specification 8. It was further a part of said conspiracy that said defendants would publish and circulate, and cause to be published and circulated, books,, articles, magazines, and newspapers advocating the principles of Marxism-Leninism. In developing the important issue of the intent of the defendants, the prosecution deve10ped proof through their own witnesses and exhibits 13nd the cross-examination Of defense witnesses concerning first, the defendants' understanding and interpretation of the principles Of Marxism-Leninism in the period before the Communist Political Association, when all of the defendants were active Party officials, and secondly, concerning the program which the Party, under the defendants' direction, subsequently engaged upon. It was shown that beginning at least in 1928 and purportedly 26 8 R. 5833. 159 ending in 1940, the Communist Party of the United States Of America was a section Of the Communist International, the world-wide organiza- tion of Communist Parties, with headquarters in Moscow, which based themselves on the principles of Marxism-Leninism. The defendant Foster, who was the Party's candidate for President in 1924 and 1928 and a member of the Central (now National) Committee of the Party since 1921, was a delegate to the Sixth Congress Of the International.227 On October 17, 1940, Congress passed the Voorhis Act. Following this, the American Party disaffiliated from the International "for the specific purpose of removing itself from the terms Of the so-called VOOrhis Act," which would have required the Party to register with the Attorney General as an "organisation subject to foreign control which engages in political activity." This was done although, as Browder, the then leader, stated, ”We uphold the principles of the Communist International."228 It was shown that the formal disaffilia— tion did not result in the withdrawal Of the C. I. representative in the United States (Hans Berger, also known as Gerhart Eisler). Budenz testified that even after the C. I. was formally dissolved in 1943, Eisler remained here as the "representative of the C. I. apparatus in the United States."229 Budenz introduced, and the Government emphasized the importance of, the Program of the Communist International, which was adOpted at V the Sixth Congress in Moscow in 1928 and was published in the United 227 15 R. 11534, 11639. 228 10 R. 7913. 229 5 R. 3559. 161 Specification 9. It was further a part of said conspiracy that said defendants would conduct, and cause to be conducted schools and classes for the study of the principles Of Marxism-Leninism, in which would be taught and advocated the duty and necessity of overthrowing and destroying the Government Of the United States by force and violence. The 1928 Program of the Communist International was given by the defendant Stachel to Budenz in 1935, when he joined the Party, to enable him to "perfect my Communist understanding" and was used by him in Party work until he left the Party in October, 1945. The program is also used in the Outline of Marxist—Leninist Fundamentals, which was issued by the Party's Illinois District Education Commission under defendant Green's general supervision after the reconstitution 231 of the Party in 1945, The outline refers to the Program as a source for Party principles and contains study assignments from the Program.232 The Program is also quoted in Defense Exhibit 9 x Z, p. 35, the educational outline which was issued by the National Education Commission of the Party in 1946.233 The Program itself, entered as Government Exhibit 3, was organized into ten chapters, describing the theoretical transition from Capitalism to Socialism. The prosecution treated the Program in some detail, reading various sections Of it to the jury. The Government also introduced the book, Why Communism? by M. J. Olgin, who had been an editor of a Party newspaper. Through Budenz'a testimony, this book was admitted in evidence against the defendant 31 10 R. 7436. The outline is Government Exhibit 51, 19 R. 14823. 232 See Exhibit 51, pp. 4, 12, 19 R. 14830. 233 20 R. 15498. 161 Specification 9. It was further a part of said conspiracy that said defendants would conduct, and cause to be conducted schools and classes for the study Of the principles of Marxism-Leninism, in which would be taught and advocated the duty and necessity Of overthrowing and destroying the Government Of the United States by force and violence. The 1928 Program Of the Communist International was given by the defendant Stachel to Budenz in 1935, when he joined the Party, to enable him to "perfect my Communist understanding" and was used by him in Party work until he left the Party in October, 1945. The program is also used in the Outline of Marxist—Leninist Fundamentals, which was issued by the Party's Illinois District Education Commission under defendant Green's general supervision after the reconstitution 231 of the Party in 1945. The outline refers to the Program as a source for Party principles and contains study assignments from the Program.232 The Program is also quoted in Defense Exhibit 9.x Z, p. 35, the educational outline which was issued by the National Education Commission of the Party in 1946.233 The Program itself, entered as Government Exhibit 3, was organized into ten chapters, describing the theoretical transition from Capitalism to Socialism. The prosecution treated the Program in some detail, reading various sections Of it to the jury. The Government also introduced the book, Why Communism? by M. J. Olgin, who had been an editor Of a Party newspaper. Through Budenz'a testimony, this book was admitted in evidence against the defendant 231 10 R. 7436. The outline is Government Exhibit 51, 19 R. 14823. 232 See Exhibit 51, pp. 4, 12, 19 R. 14830. 233 20 R. 15498. 162 Stachel. It was shown to describe in detail the period of crisis when the revolution begins. The book, which was first issued in 1935, remained in Party libraries and was referred to at meetings in the national office in 1945. Regarding Dimitrov's "United Front” tactic, developed at the Seventh World Congress of the Communist International in 1935, Budenz testified that after he joined the Party, the defendant Stachel supplied him with four basic writings to aid him in perfecting his understanding Of the tactic. All four, he testified, bear on the necessity for violent proletarian revolution. In addition to those books already mentioned, he quotd from The Communist Party —;A 234 Manual 23 Organization. In December, 1945, when the witness Cummings attended the Party's National Training School in Chicago, the students were instructed on security measures on their arrival at the school. They were told not to use their last names at the school, to refrain from dropping mail in mail boxes near the school, and not to use the telephone at the school to call their homes. Cummings testified that he had been instructed to destroy his 1948 membership card, and that none was issued for 1949.235 The Government was successful in showing that these activities were the result Of a new training program in Marxism—Leninism, which was launched in 1945 following the special convention which reconsti- tuted the Party. The defendant Dennis reported to the National 234 Exhibit 4, 19 R. 14521—14536. 235 7 R. 5688. 163 Committee in June, 1945, after that group had adopted the Draft Resolution. Dennis' report was shown to have called for the "widest and most profound study of the Marxist-Leninist classics," among which 236 be included the reports of Dimitrov on the American situation. In the same report, the defendant Williamson explained that there had been a "serious decline" in the sale of Marxist—Leninist litera- ture during the period Of the Communist Political Association, and he reported that in the summer of 1945 there would be an examination of the curricula, outlines, textbooks, methods of teaching, and personnel of all Party schools, and that this would be combined with 237 "an intensive course Of reeducating the educators." Williamson's program was repeated to the convention in July, 1945. William Foster, as chairman of the new Party, told the convention: As never before, we must train our Party in the fundamentals of Marxism—Leninism. To this end we must check over the curricula, teaching personnel and textbooks of all our schools. We must re-examine all our recent literature. We must prepare new propaganda and agitation material in harmony with our new line. 238 Less than three years later, Foster was able to state to the Party: Since the repudiation of Browder's revisionism our Party has made a sharp improvement in its attitude toward Marxist-Leninist theory. It has learned from bitter experience to value the works of Marx, Engels, Lenin, and Stalin more highly than ever: before. A real "going back to the books" is taking place; a genuine appreciation of Marxist theory is now developing in the Party. 239 236 Exhibit 155A, B R. 6998 and Exhibit PPPPP—2, 20 R. 15142. Dennis' report is Exhibit 21A, found at 19 R. 14672. 237 Exhibit 21A, pp. 13—14, 19 R. 14682. 238 Exhibit 25A, 802, 19 R. 14751. 39 15 R. 11637. 164 .A new educational department was established following the 1945 convention. The defendant Stachel was appointed National Education Director and remained in that position through July 9f 1948.240 Defendants Davis and Winston gave testimony establishing the responsi- bility of the National Board and National Committee for the work of the Party schools.241 The jury heard testimony from defense witnesses that in January of 1946, shortly after the Party was reconstituted, the National Education Commission adopted a report proposing a campaign to enroll the Party membership, "especially the bulk of the 15,000 newly recruited members," into introductory and secondary courses on Marxism. In preparation for this, the report said, "The National Education Department should prepare centralized curriculums," and the districts should organize the "preparation Of teachers through seminars to be conducted for the political leadership in the districts and sections as well as for the propagandists not in the leadership who will teach the classes." The report called for the preparation of a self-study guide and other study aids for each of the Communist classics that were to be published for mass sale. These proposals were adopted by the National Committee.242 Shortly thereafter, the National Education Commission met with a subcommittee of the National Board, consisting of defendants Stachel, 243 Dennis and Williamson, to plan the implementation of the new program. 2409 R. 7008. 24111 R. 8441-8442 and 15 R. 11915—11916. 242 14 R. 10791. 243Ibid. 165 Government witnesses who had attended these Party schools gave testimony which supported the Government's contention that the Party's training program in Marxism-Leninism was carried out. The evidence showed that club meetings were customarily divided into business and study sessions; club study circles were organized; and several formal schools were established. The national training schools for carefully selected Party members were shown to have been subject to the direct supervision of the National Education Director.244 The Government witness Cummings, who had been sent to the National Training School in Chicago in December, 1945, had to be approved by the National Board. He and approximately thirty other Party functionaries were given an intensive two—week course in Marxism-Leninism which was conducted by George Siskind, a member of the National Education Commission. Cummings testified that Siskind lectured the students on the role of the Party in showing the.American workers their backwardness in believing that their problems can be settled amicably in conference between management and labor, and told them that the only solution for the workers' problems was the destruction of the capitalist class in America and the establishment Of a dictatorship of the proletariat?45 He said the; ghe trade union 4 movement must be made a school for Marxism-Leninism. Siskind's lectures included the subjects of "peace and democracy” and the "Negro question." These lectures also expressed the hard 244 14 R. 10782. 245 7 R. 5754. 246 7 R. 5756. 166 Stalinist line. The experiences of the other six witnesses who had attended Party schools during this period followed the same pattern as that testified to by Cummings. The Government developed one phase of its case in great detail. This phase involved the study outlines that the party had prepared. These were Government Exhibit 51 and defense Exhibit 9 x Z. Exhibit 51 was entitled "Outline of Marxist-Leninist Fundamentals for Class Use and Self Study" and was issued by the Illinois State Education Commission of the Communist Party. It had been used in Party study classes and schools?47 Party members were also told to use it for self-study together with the books specified in the outline. The defendant Green testified that the outline was prepared under his general supervision in late 1945.248 Defense Exhibit 9 x Z was entitled "Outline on Fundamentals of Marxism for Class Use or Self Study." It was issued by the National Education Commission of the Party and was widely distributed within the Party.249 The Party's Educational Director in Missouri testified that he received copies of it from the National Commission and that it was distributed and used.250 Both outlines were structured into "lessons" and were keyed to the several basic Marxist—Leninist works introduced in evidence by the Government. The prosecution went to great length to detail this for 247 6 R. 4867; 7 R. 4959; 13 R. 9793. 48 10 R. 8028. 249 13 R. 10234—10235. 25 012 R. 9700. 167 the jury. The lessons dealt with such subjects as Marxist-Leninist theory, the capitalist system and its contradictions, the class struggle, the State before and after the Socialist Revolution and Imperialism. Evidence showed that many Of the schools were conducted in rural retreats and on some occasions in private homes. Several of the defendants had served as guest lecturers at the National Training Schools and occasionally at local schools.251 The United States rested its case at 3:30 p.m. on May 19th, following the cross-examination of Balmes Hidalgo, Jr., the last Government witness. Several days of argument on motions followed. 168 CHAPTER V THE CASE FOR THE DEFENSE The Court denied defendants' motions for a mistrial and for judgment of acquittal which were made at the close of the prosecution's case.251 The defense case commenced on May 23 and was concluded four months later, on September 23, after 35 defense witnesses had been heard. Eighteen of these witnesses, including five of the six defen— dants who testified, improperly declined tO answerrquestions asked for them by the Cour or the cross-examiner. The Government offered no rebuttal evidence. At no time during the trial did the defense take the position that during the 1945-1948 period the defendants did not act in concert with a view to achieving their common Objectives. Their basic argument seems tO have been that the evidence did not support the charge of intent to teach and advocate overthrow of the Government, not that the evidence did not show that the defendants were cO—conspirators. The defense case centered largely on testimony calculated to show that beginning in 1935 the Party adopted the tactic Of participating in a united front against fascism. The thrust of this evidence was to show that the defendants and the Communist Party contemplated acquiring political power peacefully through joint action with other groups. The extreme length Of the trial resulted in large measure from the defense contention that the issues framed by the indictment included not only whether defendants conspired to teach and advocate 251 8 R. 6351. 169 the forcible overthrow of the Government with the legally requisite intent, but also the stand which the Communist Party had taken with respect to asserted grievances of young people, trade unions, farmers, working people in general, veterans, housewives, lynching, and asserted discriminatory practices in the South and a great number Of other real or fancied grievances Of various segments of the population. By concentrating much of their efforts on tendered proof concerning the latter category, defendants were seeking, at least in the view of the government, to use the courtroom for ”propaganda purposes, to distract the attention of the court and jury from the real issues in the case and to persuade one or more members of the jury that the Communists are the protectors and defenders of those who hear grievances, legitimate or otherwise, against our society?E2 Hence, the Status, or State of the Case, that the defense saw and offered may be stated in the following argument: The Communist Party adheres to the principles of Marxism-Leninism. Defendants are the leaders of the Communist Party and as such they apply the principles Of Marxism-Leninism in all their activities. Therefore, the central issue in the case is the content of Marxism—Leninism and everything that defendants have said or done during the period Of the conspiracy is admissible to show their understanding of Marxism-Leninism and its application in this country. «hlzfifiwiq The Government, Of course, held to the view that the narrow issue created by the pleadings was whether defendants, or any of them, did, in the sense made illegal by the Smith Act, conspire to teach and 252 Government C. A. Brief, p. 361. 170 advocate the forcible overthrow of the Government of the United States and to organize the Communist Party for that purpose. The defense took the position that the Marxist-Leninist works relied on by the Government do not teach and advocate the overthrow Of Government. The defense complained that the prosecution repeatedly read to the jury excerpts from Marxist—Leninist works which deal with the phase of the dictatorship of the proletariat, "as though it were synonymous with the initial assumption Of power by the working class."253 The Defense argument was that the manner in which the working class becomes the government is, as Marxist-Leninist theory has it, a step which precedes that in which it exerts governmental powers through the diOtatorship of the proletariat against counter—revolutionary movements launched by the overthrown classes. The argument was that the Government fostered the misconception which superimposed the language and the conceptions dealing with the dictatorship of the proletariat upon the preceding phase of the revolutionary process, the first step of which is 254 "the act of the working class becoming the government." 253 United States Court of Appeals for the Second Circuit, No. 21538- October Term, 1949, United States of America, Appellee, v. Eugene Dennis, et al, DefendantseAppellants, Brief for Appellants, Adams Press, Inc., 82 Beekman Street, N. Y. C., p. 143. Referred to hereafter as Defense C. A. Brief. 254 Ibid., 171 Five defendants and thirteen other defense witnesses who were Party Officials refused to answer proper questions relating particular- ly to the identity Of others with whom they acted in Party affairs. Defense witness Krchmarck testified that his declination to answer resulted from discussions with Mr. Sacher, one of the defense counsel, and the defendant Dennis. Dennis told him, he testified, that "our position" is "not to identify people."255 Defense witness Johnson similarly testified that his refusal to answer proper questions was on advice of Mr. Crockett, another defense counsel.256 The basic position of the defense during the trial may be said to have been that in none Of the material introduced was there evidence Of advocacy, and that in any event their program changed in 1935, following the Seventh Congress, from one of advocating a direct transition from capitalism to the dictatorship Of the proletariat to one of advocating a people's front government to combat fascism in the world.257 Given the nature Of this position, the reply made to the specifications in the indictment by the defense case was not direct and forceful. Reply to the Specifications Specification 1. It was a part Of said conspiracy that said defendants would convene, in the Southern District of New York, a meeting of the National Board of the Communist Political Association on or about June 2, 1945, to adOpt a draft resolution for hte purpose Of 25512 R. 9228-9230. 56 13 R. 10219. 257 See 9 R. 6699-6702, 10 R. 7522—7523, 15 R. 11549-11551. 172 bringing about the dissolution of the Communist Political Association, and for the purpose of organizing as the Communist Party Of the United States of America a society, group, and assembly of persons dedicated to the Marxist-Leninist principles of the overthrow and destruction Of the Government of the United States by force and violence. The principal point of contention here was the nature of the circumstances which led to the Draft Resolution and the renunciation of the Browder program and the reconstitution Of the Communist Party. In regard to the Foster letter criticizing the Browder program, the defense pointed out that Foster had later explained in an article that he had submitted to the suppression Of his letter on the grounds that he would have been expelled from the Party if he had not acquiesced, and that he had been advised that Browder's attitude was approved from abroad and he did not wish to Oppose Opinions coming from abroad.258 The defense showed that the French leader Duclos had dealt with the Foster letter, which had been suppressed in the United States. However, the defense did not offer evidence showing how the suppressed letter found its way during the war into the hands of Duclos.259 Defendant Davis, on direct examination, was asked about this point by the Court. (Davis was testifying at this point on speeches made at the National Board meeting of June 2, 1945):‘ Davis offhandedly answered that that was not the main question at all. In connection with the Duclos affair, Budenz had testified con— cerning a letter he had received from one Of the Qgily'Worker correspon- 258 Exhibit 25A, 19 Re 14741, entitled "The Struggle Against Revisionism, A Report to the Special Convention of the Communist Political Association,". printed at pp. 782-834 of a booklet entitled Political Affairs, September 1945. 59 11 R. 8400. 173 dents at the United Nations Conference, which stated that Manuilsky was indignant at the American Party for not having been more critical of the Secretary of State. The defense Offered testimony contradicting this. The witness Joseph Starobin, foreign editor of the Daily Worker, simply denied it.260 However, the defendant Stachel, the person who was in a position to give direct testimony concerning the letter, did not take the stand. We see, then, some early examples of the rather constant failure of the defense to meet the "best evidence” rule of courtroom pleading. The defense had also complained about the Court's not receiving in evidence a pamphlet written by one James S. Allen, who Budenz had testified engaged in a lengthy debate with Stachel immediately prior tO the reconstitution Of the Party. However, the defense failed to call.A11en as a witness. They met Budenz'a testimony in this respect by the testimony of Starobin and Samuel Sillen, editors Of Communist publications. Under direct examination by Isserman, and after much colloquy as to the form of the questions, Starobin was allowed to testify to the.Allen—Stachel debate, which took place at Daily Worker staff meetings on three successive Fridays in 1945, as he remembered it. He testified that.Allen had taken the hard line, i,e., that big business in the United States was even more reactionary to— ward the end Of the war. He was critical of the Draft Resolution, saying it assumed too much. Stachel was reported to have defended the Draft Resolution, saying that it was not impossible for progressive things to happen in the United States while big business continues to dominate the country. 260 13 R. 10439-10440. 174 The witness Sillen, editor Of the monthly "Masses and Mainstream," was examined by Mr. Gladstein. Again, there was much difficulty with the form of questions. Sillen testified that Allen felt the Draft Resolution was faulty, but provided a good basis for discussion.261 Here we see the interesting situation where the defendants would convine the jury that their teaching and advocacy (here in the form Of a policy debate within the Party) was legal, yet they refused to place on the stand the principals in the Draft Resolution debate, Allen and Stachel! Specification 2. It was further a part of said conspiracy that said defendants would thereafter convene, in the Southern District of New York, a meeting of the National Committee Of the Communist Political Association on or about June 18, 1945, to amend and adopt said draft resolution. The principal Government witness in regard to this specification was Herbert Philbrick of Boston, Massachusetts, who had testified as to the closed nature of the District One (New England) Convention in the summer of 1945. The defense witness Fanny Hartman, at that time the New England District Organizational Secretary, testified at length on the district convention procedure?62 The witness denied Philbrick's testimony that a person who sent his name up from the floor Of the district convention to the chairman could not be heard. Hartman went on to describe the series of panel discussions on the draft resolution held at the District One convention, testifying that they were critical and constructive. 261 See 13 Re 10475—10748 and 14 R. 10701—10702 for the testimony of these two witnesses. 262 11 R. 8606—8611. 175 The Court, in the case of this witness as well as others, excluded considerable testimony on the question Of democratic 263 parliamentary procedure in the Party, regarding which the defense 264 complained bitterly. However, the exclusion was for cause in each case. For example, the Court at 11 R. 8605 excluded testimony of the "reasons" given by the witness Hartman at some preliminary Arrangements Committee meeting, whereas the question at issue was what was actually done at the convention. Specification 3. It was further a part of said conspiracy that said defendants would thereafter cause to be convened, in the Southern District of New York, a special National Convention of the Communist Political Association on or about July 26, 1945, for the purpose of considering and acting upon said resolution as amended. A number of Government witnesses had testified that various defendants and other national Officers of the Party had appeared at state and local conventions and had in effect instructed delegates to vote for the Draft Resolution at the National Convention. The defense made no denial of events during this "discussion period" between the drafting Of the Draft Resolution and the National Convention which adopted it and reconstituted the Party. They consistently challenged the interpretation Of these events. Their main effort was designed to counter the testimony of Louis Budenz, whom they clearly saw as the principal Government witness. Isserman asserted that defendants were on trial for what Budenz thought, not for what the defendants themselves thought or did. 263 Government C. A. Brief, p. 395. 264 Defense C. A. Brief, p. 352, fn. 44. 176 In countering this testimony, they seemed to have relied heavily on Foster's desposition, as the most authoritative source in the Party, and on the contested documents themselves. The defense position seemed to argue that if there was a con- spiracy in this case, the DrafthesOlution as amended and the Constitution were the sole documentary evidence Of the purpose and content of that conspiracy. It was further argued that these documents were a fair test Of the issues in that they were Party documents. The Government could not contend, they argued, that these documents were drafted for outside consumption in order to conceal a "secret" program inconsistent with it. If these documents could not constitutionally con- vict defendants, the oral testimony of the Government's "informer” witnesses was powerless to do so. Finally, they argued that the timing Of these documents was significant. It was argued that they were written in "polemic response" to a felt need for a change in policy. Documents and manifestoes written at such times are often overstated in order to emphasize the completeness with which a past policy and program is rejected, the defense argued. Hence, documents produced under such circumstances are the favorite targets Of politi- cal persecution. Here the cases of Gitlow and Whitney were cited as previous examples.265 Specification 4. It was further a part of said conspiracy that said defendants would induce the delegates to said National Convention to dissolve the Communist Political Association. Several defense witnesses testified regarding the National Convention and the methods of instructing delegates to the convention. 265 Defense C. A. Brief, pp. 165-166, fn. 280. 177 They were, in several regards, ineffective. The witness Yolanda Hall testified that she took part in considering and adopting the new Party Constitution. The testimony was characterized, however, by repeated answers of "I don't recall," especially on questions concerning voting?66 Several other witnesses suggested that delegates to the special 1945 Convention had been instructed to support the Duclos 267 position. One Of the defendants who testified here was Carl Winter, Michigan State Party Chairman, whose direct examination was conducted by Mr. Crockett. Winter was also at that time a member of the National Committee and the National Board of the Party. He claimed that the Michigan State Convention posed several amendments to the National Committee's draft resolution and elected delegates to the national convention by secret ballot?68 Winter also testified that approximately 500 resolutions came before the convention and that most Of these were amendments to the National Committee's draft resolution. As to the method Of amending the draft resolution, Winter testified that various members Of the resolutions committee at the convention reported on selected sections of the draft resolution, Offering the arguments for the proposed changes in each case. This procedure would be followed by discussion on the floor of the conven— tion, according to Winter's testimony. 266 12 R. 9379—9385. 267 See, for example, 14 R. 11058. 268 Ibid. 178 Specification 5. It was further a part of said conspiracy that said defendants would bring about the organization of the Communist Party of the United States of America as a society, group, and assembly of persons to teach and advocate the overthrow and destruction of the Government of the United States by force and violence, and would cause said Convention to adOpt a Constitution basing said Party upon the principles of Marxism—Leninism. This is the most important of the enabling counts of the indict— ment, charging that the defendants reconstituted the Party for purposes which violated the Smith Act. It also asserts that the Party Constitu- tion is based on Marxism-Leninism, a premise from which the Government's case proceeded. It was necessarily based on an interpretation of Marxism-Leninism which included the advocacy of violent overthrow of of government. The Government's substantive case rested heavily on the testimony of Louis Budenz. While the defense took every occasion to disparage Budenz'a testimony regarding the nature and content of Marxism—Leninism, they relied basically on the testimony of Foster (by deposition) for refutation. Foster testified in his deposition, that the Party, in its new constitution, readopted the same program which it had followed for twenty-six years.269 In a constant effort to put in testimony concerning the meaning of Marxism-Leninism as Party leaders defined it, the defense was constantly at loggerheads with the Court over questions of "long speeches" from the witness stand by defendants and other defense witnesses. On August 10th, in the third month of the defense case, the Court had warned that because of the extreme length Of the proceedings, many of the rulings which previously had allowed general questions would not be followed in the future. Nevertheless, the 26915 R. 11594. 179 defendant Thompson, who was on the stand at that time, proceeded to develop a long answer. It was in this context that the Court sus- tained an objection to a question concerning the meaning which the Communists gave to the sentence in the Preamble to the Party's con— stitution, which recites that the Party bases itself upon the princi— ples of Marxism-Leninism?7o This was, of course, a critically important point for the defense, and they complained on appeal of this exclusion. However, as the Government pointed out in their answering brief, almost identical questions were allowed in the preceding testimony of defendants 271 272 273 274 Gates, Green, Foster, and Winter. Winter had prefaced his testimony by showing that he was a member of the committee which had drafted the preamble. The defense witness Berry denied that Budenz bad correctly stated the understanding of those who adopted the preamble?75 Thompson also had categorically denied that Budenz had correctly stated the Party's understanding Of "basing itself on the principles of scientific socialism, Marxism-Leninism" in the preamble.276 Despite the Court's plea for a brief answer confined to ”really important" subject matter, Thompson gave a long answer concerning 270 13 R. 9886—9890. 2 718 R. 6505—6510, 6512-6516. 272 10 R. 7448, 7464—7469, 7475, 7478. 273 Transcript of Deposition, 15 R. 11556-11563, 11607—11608. 74 14 R. 11195-11200, 11202—11205. 27513 R. 10552—10553. 276 13 R. 9890. 180 277 his version of the principles of Marxism—Leninism. On the following day, Thompson indicated that he had neglected to cover the entire report on the previous day, and the Court again permitted him to answer at length, again on the subject of Marxism-Leninism?78 Six defendants and Foster testified on this point, leaving little doubt that the jury was well informed on their version of Marxist- Leninist understanding and belief. The defense also made constant effort to introduce documentary proof of their view of the meaning of Marxism-Leninism. After two months of defense testimony, further cumulative proof on this issue was rejected by the Court. The defense argued subsequently that a number of documents were improperly excluded?79 The documents Offered dealt with such subjects as the Marshall Plan, the Committee on UneAmerican.Activities,‘the“Eugene Dennis contempt of Congress case, the TrumbO-Lawson contempt cases, and a campaign for the "peoples' democratic movement in China, Latin America and Greece," as well as many similar irrelevant subjects. Budenz'a testimony concerning the Party's use of protective language seemed to receive unwitting corroboration from the testimony of defendant Winter. In his testimony Winter sought to avoid respon— sibility for certain of the writings in evidence by pointing to Article 14 of the Pary's Constitution, which provides: 27713 R. 9904-9910. 27813 R. 9966—9978. 279 Defense C. A. Brief, pp. 337—338. 181 The Communist Party is not responsible for any political document, policy, book, article, or other expression of political opinion except such as are issued by authority of this and subsequent national conventions and its regularly constituted leadership. 280 Winter had been handed a series of writings which the evidence showed had been used by the Party in its teaching and advocacy during the period covered by the indictment and was directed to specify which exhibits had been authorized within the meaning of Article 14 and which had not. After considerable circumlocution, during which he admitted that the Party publishes, distributes, and urges the study Of Marxist-Leninist writings, Winter finally testified that 22 writings had been authorized within the meaning of Article 14 of the 281 Constitution. Similar corroboration for Budenz' testimony in respect to the Party's use of protective language is found in Winter's testimony concerning defendants' advocacy of the establishment of a dictator— ship of the Proletariat in the United States. Lenin and Stalin have described the dictatorship as follows: .the dictatorship of the proletariat is the rule —- unrestricted by law and based on force—-of the proletariat over the bourgeoisie, a rule enjoying the sympathy and support of the labouring and exploited masses. 282 The words in the Constitution which describe the Party's adherence to this concept, according to Winter, appear in the Preamble and read "by the 280 15 R. 11467—11469. 281 15 R. 11494. 282 Ex. 33, p. 53, 19 R. 14813. 182 common ownership and operation of the national economy.” Winter testified that at the 1945 convention one of the delegates inquired where the proletarian dictatorship appeared in the preamble. He said that the defendant Dennis replied by referring to this innocent appearing phrase and saying, "There it is in language so plain that everybody can understand it."283 The defense also argued that every speech on any subject made during the period of the indictment should have been admissible. An example of matter that was excluded was Defense Exhibit XXXXX, which was a record of a veterans encampment in Washington, D. C., in 1947. Defendant Gates testified that the National Board authorized the en- campment as a demonstration to rebut Secretary of Labor Schwellenbacb's prOposal that the Communist Party be outlawed?84 Defendants argued on appeal that it was error to exclude speeches which admittedly were self-serving in the narrowest sense of the term. While the entire episode might properly have been excluded, the Court permitted Gates to testify at length about the encampment?85 and received in evidence the program adopted by the encampment?85 On the same day the Court also had admitted as showing the Party's program for veterans, a 287 pamphlet setting forth the program. An examination by the writer of 283 14 R. 11215. 2849 R. 6635—6637. 285 9 R. 6634-6668. 286 Exhibit XXXXX—l, 9 R. 6662—6666. 287 Exhibit VVVVV, 9 R. 6622-6634. 183 the subjects covered in the admitted program showed a complete lack of relevancy to the charges in the indictment. In reply to the Government's proof relating to Aesopianism, especially as related to the Party's Constitution, the defense offered testimony and documentary exhibits through defendants Green and Winter, the witness Foster by deposition, and the witness Max Weiss, then mid- west regional coordinator of the Communist Party. Examination of the summation pleading indicates that the defense relied most heavily on Foster's testimony, presumably holding him to be thelnost authoritative spokesman for the Party. In the case of each witness who was physically present, the Court had difficulty in limiting the testimony. During the direct examination of the defendant Green, for example, Mr. Isserman would constantly frame a question which would permit the witness to develop an extended answer. This was done despite repeated orders from . 288 the Court to limit questions to specific events. Specification 6. It was further a part of said conspiracy that said defendants would bring about the election of officers and the election of a National Committee of said Party, and would become members of said Party, and be elected as Officers and as members of said National Committee and the National Board of said Committee, and in such capa- cities said defendants would assume leadership of said Party and responsibility for its policies and activities, and would meet from time to time to formulate, supervise, and carry out the policies and activities of said Party. This enabling count of the indictment charges that the Party, as reconstituted in 1945, was the principal organizational instrument of the conspiracy and that the eleven defendants had assumed the leader- ship of the Party and were legally responsible for its policies and activities. The Government had produced considerable evidence to 88 10 R. 7842, 7852—7889. 184 support the argument that the terms of the Party Constitution were not met by the defendants and their associates in the leadership of the Party. It was shown that Article VI, Section 2, for example, did not govern the career of the defense witness Samuel J. Hall. The article states that the State Committee shall elect a chairman from among its members and that to be eligible for membership on the State Committee "one shall have been a member of the Party in good standing for at least two years." Witness Hall testified on direct examination that he had lived most of his life in Alabama, that he joined the Party in Alabama in January, 1946 and that after a period of attendance at Party schools he was "elected" in May or early June to the chairmanship of the North and South Carolina District of the Party.289 On cross—examination Hall stated that defendant Williamson spoke with him about the position in the Carolina district; that he thereafter went to North Carolina and met with members of the Party who were not "open members," and then was presented to a district convention as having the recommendation of the national Office and, being the only candidate, he was unanimously elected chairman?90 It was brought out then, that a stranger to the Carolina district, who had been in the Party approximately four months, was "elected" to the highest office in the local organization on the recommendation of the national Office. It was also shown through cross-examination that the defense witness Hartman became an Official of the Indiana Party organization through 291 the same practice. The defendant Green testified regarding how a 28912 R. 9600-9659. 29012 R. 9660—9665. 291 11 R. 8702—8703. 185 State Board handles policies handed down by the National Board. He admitted that such policies must be carried out regardless of whether the local Officials agree with them?92 The government's effort to show intent to assume leadership of the Party was based in part on evidences of defendants acts and utterances during the period of the predecessor Communist Party. This evidence had been received on the issue of intent only and was limited to the particular defendant involved. In the presentation of the defense case, defendants broadened the issues by testimony designed to show that going back as far as 1929, the Party and defendants did not advocate the forc~ ible overthrow of the government. On such occasions the admission of excerpts from Party literature was a constant issue.293 Defense persisted in complaining that important documentary evidence and testimony were being excluded from the jury. This was especially true, the defense argued, regarding the question of the defendants' intent in assuming leadership of the Party. Their argument on appeal regarding this exclusion was characterized by the government in the answering brief as "four months of defense testimony was not enough; that everything they said or did is relevant to show their mental state during the indictment period and earlier}?94 Exhibits 9 x B and 9 x C contain defendant Davis' article, "Why I am a Communist." The defense argues that after Davis had given extensive testimony on the subject, he was entitled to corroborate his testimony by having read to the jury the same facts, as previously 292 10 R. 7549. 293 9 R. 7333, 10 R. 7883—7884, 11 R. 8328-8330, 15 R. 11594. 294 Gov't. C. A. Brief, p. 392. 186 295 written by Davis. The material was not needed as rebuttal as the prosecution made no effort to challenge the testimony relating to all the good things defendants claimed they did. The same argument was 296 true regarding the Foster deposition. Specification 7. It was further a part of said conspiracy that said defendants would cause to be organized Clubs, and District and State units of said Party, and would recruit and encourage the recruitment Of members of said Party. The defendant Winston testified that at the time of the return of the indictment there were "a few thousand" Party clubs throughout the United States. The government's evidence had established that the Party had pursued a strong recruitment drive following the reconstitution of the Party in 1945, that this drive had concentrated in industrial areas, and that certain membership practices were apparently designed for secrecy. The defendant Gates testified on direct examination that the Party's purpose in concentrating on basic industried was to win the support of a majority of the working class for the defense of~its own interests and for the purpose of leading them to the conclusion that the only solution to their problems is the establishment of socialism in the United States?97 Defendants argued that they had supported many activities cal- culated to achieve social reforms, The government contested the in~ ference they sought to have the jury draw. The government argued that the jury could reasonably conclude that these reform efforts were merely 29511 R. 8345-8349. 296 Exhibit 6 x E, 20 R. 15216-16218. 297 8 Re 6459. 187 some of the means which defendants and the Party used to attract members, to emphasize alleged inequities in the existing state and thus foster discontent, and to seek to maintain conditions which favored their pre— paratory activities for the anticipated proletarian revolution. For example, the witness Blanc had testified that at a Party meeting in Cleveland in February 1947, the defendant Winston urged that, as a means for drawing the workers to the Party, the Communists should be active in aiding the workers on such issues as higher wages and a lower cost of living?98 The defense contended that the Court permitted the jury to draw improper inferences concerning the effect of alleged secret practices on defendants' constitutional rights. They developed an analogy with the theory employed in the Salem witch trials of 1689-1690. Under this theory, an accuser of a witch could successfully contend that the ac— cused had appeared in a spectral shape before her. The fact that the shape was invisible to everyone else and that the accused could prove ashe was elsewhere, was wholly irrelevant, if not in itself probative Of the charge. "Under this invention of an earlier-day Budenz," halluci- nations, dreams, and mere fancies would be accepted in Court as factual proof not of the psychological condition of the accuser but Of the be- havior Of the accused. This theory, the defense tersely pointed out, was dropped by the witch—hungers?99 The defense complained here, in regard to the secrecy issue raised both in regard to their clubs and recruiting practices as well as schools and teaching practices, that such secrecy as the record re— 2988 R. 6001. 299 Defense C. A. Brief, p. 192, fn. 313. 188 flects was merely a defense against persecution and discrimination. "To the extent that the issue of secrecy was relevant, both the govern- ment's and the appellants' versions should have been submitted to the jury.300 The defense argued in their Appeal Brief that Judge Medina failed to do this in his charge to the jury. "Instead, he charged in effect that secrecy was evidence of guilt without regard to its moti— vation. That was tantamount to instructing the jury that they could infer guilt from secrecy.:'3'01 The defense compared the government's arguments here with arguments from the Revolutionary period and the open shop period Of organized labor to show the justification for some secret practices. This argument seemed to constitute an apologia for secret recruiting, the use Of given names and pseudonyms by members, and other secret practices. Specification 8. It was further a part Of said conspiracy that said defendants would publish and circulate, and cause to be published and circulated, books, articles, magazines, and newspapers advocating the principles of Marxism-Leninism. It was in regard to the literature of the Party that the basic issues of Marxism-Leninism and Aesopianism were fought out. The defense argued consistently that certain of the Marxist-Leninist writings on the necessity for violent proletarian revolution were improperly re— ceived in evidence and that this phase of the proof was presented out Of context. In dealing with the problems incident to the receipt in evidence of bulky documents, the court had stated that the party Offering an exhibit should read to the jury upon admission Of the 300 Defense C. A. Brief, pp. 198-199. 301 See Medina's Charge at 16 R. 12469-12470, 12472. 189 document such portions of it as he thought necessary, and that the opposing party could then read to the jury such other portions as he believed modified, qualified, or explained the part previously read?02 In addition, Judge Medina consistently stated that any exhibit in evidence could be read to the jury at any time, even if it involved repreating portions which previously had been read?03 The defense employed this practice throughout the trial.304 The defense presented the argument that every word in the books modifies every other word, and that it was necessary to read them in their entirety. The government argued in reply that this was thorough- ly inconsistent with the Party's practice in dealing with the identi— cal documents. Examples were found in the Party's study outlines, Exhibits 51 and 9 x Z. It was shown not only that excerpts were quoted in the outlines, but that the assigned readings regularly consisted of excerpts from the various books. Other examples were found in the use of quotations by the defendant Foster in his testimony by deposition?05 The government argued that in reading to the jury the excerpts which they thought pithily set forth the call to forcible revolution, they followed precisely the same practice which the defendants followed 306 in training their fledglings. 302 See e. g., 5 R. 3418; 6 R. 4168; 10 R. 8157. 03 14 R. 10647, 10667-10669. 304 See e. g., 5 R. 3420, 4099; 6 R. 4168—4169; 10 R. 7492; 11 R. 8410, 8596-8598; 14 R. 10151. 305 15 R. 11538—11540, 11562, 11571. 306 See Gov't. C. A. Brief, pp. 116-122 and 369. 190 Foster's book, Towards Soviet America, written in 1932 while he was the leader of the Party, and "as a plain statement of Communist policy," completely belied Gates' testimony on direct examination. It served a similar function in connection with Foster's testimony in his trial deposition?O7 Notwithstanding that Foster sought to explain away the book, it is to be noted that he testified that when the Party was reconstituted in 1945, it returned to the program that had been followed for twenty-six years.308 Though the defense complained consistently of the exclusion of material judged irrelevant by the Court, they did offer prolonged testimony bearing directly on the prosecution's proof on the real issues of the case. For every Government witness who testified con- cerning a particular Party school or other activity, there were two or three defense witnesses who had participated in the school or activity, and they gave their versions of the events. Six of the defendants and Foster gave full testimony on the issues framed by the indictment. The defendant Green was on the stand for three weeks and the defendant Gates for two weeks. Subjects bearing on the issues were covered several times.309 However, the defendants argued in their appeal brief that they were entitled to prove their prior writings and statements on the 310 issue of intent. They were actually allowed to do this, as the 30715 R. 11549, 11555, 11594. 308 15 R. 11594. 309 Government C. A. Brief, p. 382. 310 Defense C. A. Brief, pp. 369—374. 191 Government argued in the answering brief. All that the Court excluded were prior writings and statements dealing with subjects other than the advocacy of violent revolt. The defense sought to justify their effort to place before the jury "a rounded -out exposition" of the principles of Marxism-Leninism by arguing that the Government had "opened the door" to such proof. The Government argued that the door had been opened only in regard to the question of whether defendants sought to secure control of the United States Government. All of the Government's evidence, including the testimony of Budenz which the defense complained of, confined itself to the nature of the conspiracy and the means adOpted to accomplish it. The Government flatly denied that the door had been opened to proof relating to defendants' position concerning the Marshall Plan, the Spanish Civil War, and a great many similar questions. When the trial court found anything in the tendered writings which had a bearing on the issues and was not outright repetition, it received those por- tions in evidence. The defense only partly indicated this in their appeal brief. For example, Foster's pamphlet "Socialism, the Road to Peace, Prosperity, and Freedom," was received in part, and Mr. Sacher expressly stated to the Court that the pamphlet was not offered in its entirety and that he had been mistaken in saying a moment before that it had been offered and excluded.311 Yet in their appeal brief de- fendants assigned the exclusion oof the pamphlet as error, as they did 312 in regard to several other complaints. 31 115 R. 11566. 312 Fn. 287, Gov't. C. A. Brief, pp. 386—387. 192 In regard to speeches made by the defendants during the period covered by the indictment, the defense also argued that every speech 313 on any subject which they made was admissable. An example was Gates' testimony regarding a veterans' encampment in Washington, D. C., in 1947. Gates testified that the National Board authorized the encamp— ment as a demonstration to rebut Secretary of Labor Schwellenbach's 314 proposal that the Party be outlawed. The defense argued on appeal that it was error to exclude speeches which admittedly were self-serving 315 in the narrowest sense of the term. The Court did permit Gates to testify at length about the encampment and received in evidence the 316 program adopted by the encampment. 0n the same day, the Court also had admitted, as showing the Party's program for veterans, a pamphlet 317 setting forth the program. Specification 9. It was further a part of said conspiracy that said defendants would conduct, and cause to be conducted schools and classes for the study of the principles of Marxism-Leninism, in which would be taught and advocated the duty and necessity of overthrowing and des- troying the Government of the United States by force and violence. The government had clearly established that in January, 1946, shortly after the Party was reconstituted, the National Education Commission established introductory and secondary courses on Marxism. 313 Defense C. A. Brief, pp. 338-339. 314 9 R. 6635—6637. 315 See 9 R. 6649. 316 Exhibit.XXXXX—l, 9 R. 6662-6666. 317 Exhibit vvvvv, 9 R. 6622—6634. 193 Plans also called for the preparation of centralized curriculums and the "preparation of teachers through seminars to be conducted for the poli— tical leadership in the districts and sections as well as for the propa— gandists not in the leadership who will teach the classes}?18 The plan also called for the preparation of a self—study guide and other study aids for each of the Marxist—Leninist classics and an expansion "of the full—time leadership training school program already under way, both nationally and in the largest districts." It was shown that these proposals were adopted by the National Committee and that a subcommittee of the National Board, consisting of the defendants Stachel, Dennis, and Williamson, met with the National Education Commission to implement 319 the program. There was, then, no dispute in the testimony of the fact that the Party's training program in Marxism-Leninism was carried out. The issues here were the same as those in the other enabling counts of the indictment; i.e., whether Marxism—Leninism involved principles of violent revolution. Here, the two study outlines introduced into evidence, Defense Exhibit 9 x Z and Government Exhibit 51, became cru- cial. Exhibit 9 x Z, for example, specifically points out that the united front tactic developed at the Seventh World Congress was a tac- tic only and was subordinate to the Party's strate , which rests on the theory and program of Marxism quoted from Stalin's Foundations 2: 320 Leninism. 318 . . Exhibit 43-D, 14 R. 10789-10791. 319 15 R. 11915-11916. 320 See Gov't. C. A. Brief, p. 137. 194 The defense argued that their teaching demonstrated that they supported many activities calculated to achieve social reforms. How- ever, the Government pointed to the distinction between the Communist interested in the reform and the non-Communist reformer emphasized in the assigned Party readings in Foundations 2! Leninism. To a reformist, reforms are everything, while revolutionary work is something incidental, something just to talk about, mere eyewash. That is why, with reformist tactics under the bourgeois regime, reforms are inevitably transformed into an instrument for strengthening that regime, an instrument for dis— integrating the revolution. To a revolutionary, on the contrary, the main thing is revolutionary work and not reforms; to him reforms are by-products of the revolution. 321 The defense was obliged to admit on appeal that the trial court admitted the testimony of their witnesses concerning the events at the Party schools dealt with in the prosecution testimony. However, they complained that testimony relating to all other Party schools was excluded. The government pointed out that this was simply not true. The defense argument seemed to be based on the assumption that they were charged with teaching and advocating the forcible overthrow of the Government in every class or school that the Party Operated. However, the Government rebuttal of this position was detailed and 322 complete. Defendants, in their appeal brief, also referred to teachers in their Party schools as "third party teachers," as though they were 323 strangers to the defendants. 321Exhibit 33, Gov't. C. A. Brief, p. 108. 322 Gov't. C. A. Brief, p. 389, Fn. 289. 323 Defense C. A. Brief, pp. 341—342. .. L '195 For each prosecution witness who testified concerning the teachings at the Party schools there were usually two or three defense witnesses who testified that they also participated, and who gave their versions of the events. Thus, for example, Philbrick's testimony, to which appellants refer, was met by the testimony of the defense witnesses Hartman (11 R. 8661—8664, 8669—8674), Hood (11 R. 8856-8860) and Schirmer (11 R. 8754-8755). Despite this testimony as to what took place in Boston, the defense further sought to meet Philbrick's testi- mony by having the defendant Gates testify to his "understanding" of the expression "converting the imperialist war into a civil war."324 Here the government argued that Gates' understanding hardly could shed light on what had happened in Boston. Subsequently, when testimony on this slogan was sought for a more proper purpose, it was admitted.325 Briefly then, defense arguments proceeded on the assumption that all the Party did was relevant to meet the charges of the indictment. Essentially, they argued that if all documents offered had been ad- mitted by the trial court, they would have shown that "Socialism is not an immediate issue" and was not so regarded by defendants. They relied heavily on Defense Exhibit 5 x Z—l, A Report to a Meeting of the National Committee of the Communist Party, 1946, by Eugene Dennis, especially the statement: . .we communists are not proposing now, nor in the immediate future, that the non—Communist majority of 324 9 R. 6763—6764. 325 See e.g. the testimony of defendant Thompson, 13 R. 9941-9949, and 10019-10022, the latter on cross—examination, and the defendant Foster on cross—examination, 15 R. 11631-11632. 196 our population should enter into a united front with us Communists in order to "establish socialism." What we g2 propose is that the non-Communist and Communist workers and progressives should join hands now 25.; common immediate program 21 action against reaction and fascism. 326 They also pointed out that no government witness had testified that any defendant engaged in teaching or advocacy during the period of the indictment under a concealed name. They also appealed on the basis of the argument that all of the Government witnesses testifying regarding the Party's schools were "informers," in that their activi- ties were subsidized by the F. B. I., and that they attributed state- ments involving advocacy of force and violence in some fashion not to any defendant but to some other individual who was not on trial. 326 Defense C. A. Brief, p. 179, Fn. 285. 197 CHAPTER VI THE SUMMATION SPEECHES Both sides rested their case on the morning of September 23, 1949. The jury was excused until 10:30 A.M. on Tuesday, October 4. Court was adjourned until Wednesday, September 28. Parties had until two o'clock the 27th to file motions and requests for instruction. 0n the morning of the 28th, Mr. Sacher presented arguments supporting a request for permission for Benjamin Davis to sum up on his own behalf. Sacher argued that Davis was a member of the Federal Bar in Georgia and that he could argue certain questions more ably than any of the attorneys. Mr. McGohey argued for the Government that in an earlier case, Earl Browder had been allowed to sum up in his own defense and had insisted on going far afield into issues not covered in the trial, despite the efforts of the trial judge to limit him?27 Mr. Dennis was also permitted to speak on behalf of Davis' application. Mr. Davis also spoke briefly and the Court took the question under advisement. The next several days were taken up with the arguing of motions to dismiss the indictment, to strike certain testimony and exhibits, for judgment of acquittalg‘to recon‘ider the ruling of theCourt that Davis would not be allowed to sum up for himself, and motions for mistrial. All were denied. .Summations began with Mr. Isserman on Oct. 7th. Mr. Gladstein was ill during this period, and counsel had agreed in conference with the Court that the summations would proceed and that the defense would have four days and the government one day for summation. 327 15 R. 11929. 198 Almost three weeks had passed since the case had been rested, and there was some concern that the jury would have difficulty in remembering all aspects of the evidence if further delays were allowed. The speaking order of the summations was different from that of the opening speeches. Presumably one factor causing this being Mr. Gladstein's illness. It would not explain the completely different speaking order of the summations, however. In the opening speeches, the order was Dennis, C1ockett, McCabe, Sacher, Isserman, and Gladstein. In the summations, the speaking order was Isserman, McCabe, Gladstein, Sacher, Crockett, and Dennis. It will be noted that this ib not a re— verse order either. Mr. Crockett has reported that "the attorneys divided up the issues to be covered and each selected the issue and the area of testimony that interested him most. He then reviewed the entire record of the testimony relating to the issue he was to handle."328 In the opening statements, counsel and Mr. Dennis spoke to the following issues: Dennis — The political nature of the indictment and trial. Crockett T The issue of free speech. McCabe - The nature of the evidence in the Government's case, esp.‘a) Party literature and b) stool pigeon witnesses. Sacher - s) The Draft Resolution as refutation of the indictment, and b) Free Speech. Isserman — The activities of the defendants as set out in the indictment. 328 Letter from George W. Crockett, Jr., Detroit, Michigan, March 19, 1964, p. l. 199 Gladstein — Party Literature and activities. In the summations counsel and Mr. Dennis spoke to the following issues:. Dennis — The political nature of the trial. Crockett — a) Civil rights b) Credibility of the government witnesses Howell, Nicodemus, and Cummings. c) legal problems of proving a conspiracy McCabe - Testimony of stool pigeon witnesses. Sacher - a) defendants' teaching during the indictment period. b) the testimony of Budenz. Isserman - Several important documents. Gladstein — a) The free speech issue. b) The trial of books and ideas. c) Evidence against his two clients. Correlation of issues handled by each defense speaker in the opening and summations was approximately fifty percent. The method‘of analysis used in connection with the summation speeches was the same as that used in regard to the opening speeches. For the Defendants Williamson and Green: Abraham.J. Isserman 0n the morning of October 7th, at 10:30 a.m. the Court invoked the usual ritual, "Let the record show that the jury is present. . .," duly noted the absence of Mr. Gladstein, and gave Mr. Isserman per mission to proceed. Mr. Isserman stepped to the lectern and began quietly. In addressing the jury, he seemed at first to be apologetic; suggesting that the case had been sharply contested and that tempers had been frayed, he remarked that "in representing my clients. . . I was moved . . . by what I thought the law to be, by my understanding of the correct procedure, and also by my abiding conviction . . . of their 200 329 his clients profound innocence.” Isserman's introduction seemed to be devoted to an attempt to structure the issues as political in nature, an argument which developed as a basic defense contention. "This was not just an ordinary criminal trial." "The very heart of the issues of this case are political issues." He insisted that it was a trial of a minority working class political Party. His argument was that the evidence offered by the Government was essentially political in nature. With alliteration, he argued, "Take out of this trial the resolutions, decisions and the political activities of the Communist Party since 1945 and there is nothing left for you to consider. Take out of this trial the books containing the principles and philosOphy of Marxism-Leninism — the ‘bOOks and pamphlets and discussions of political and phi1030phical and social issues and there is nothing left, nothing." He brought in under the free speech issue the questions of censorship and American's tradition of free discussion as a weapon to meet change. He offered this as a ringing challenge in the imperative mood. "Once the deathly hand of censorship clamps down upon us - America has turned its back on its glorious traditions." Isserman here employed some of the history of the free speech concept in America. Contending that the trial was extra- ordinary and unusual, Isserman argued that, "for the first time since the Alien and Sedition Act of 1798, we find the leaders of a political party on trial, on trial for what they said and on trial for 32915 R. 12075. The text of this speech is found at 15 R. 12075— 12123 inclusive. 201 the ideas they advocate." Many Communists and Socialists were prosecuted under the 1917-1918 acts. He went on to argue that in a very short span of time the Alien and Sedition laws of 1798 were discarded. "The people who were jailed were released and Congress repaid the fines and repented for the shame of America. . ." After restating that the issues were political, Isserman suggested that the defendants were on trial not only for their ideas, but for what Budenz believed their ideas to be. He reminded the jury that the indictment did not charge a single overt act. It charged only that the defendants "would" do certain things. In the transition to his development, Isserman oriented the jury to what he would discuss. "In my portion of the summation I will deal with some of those political activities." He stated that he would review the period from January, 1944 (the dissolution of the Communist Party) to the summer of the next year, when the national board met and issued its draft resolutions, the national committee amended it, and the national convention adopted it. In reviewing a series of events during this year, Isserman made the point that the national committee had arranged a celebration of the 25th anniversary of the American party at a time when they were supposed to have been abandoning basic Marxist-Leninist principles. His first proposition concerned what be identified as the "keystone and cornerstone" of the government's case. This was the argument that Marxism—Leninism were abandoned and rejected in 1944 and that in 1945 the political activities of that Party and the 202 defendants became a criminal conspiracy because the principles of Marxism and the classics in which they are embodied were adopted at that convention in 1945. He reviewed the evidence. For example, the testimony of the "F.B.I. stool pigeon" Calomiris that Marxist- Leninist classics were taken off the shelves during the C.P.A. period." "Our evidence," Mr. Isserman asserted, "shows that defendants and the C.P.A. had no intent to abandon Marxism—Leninism or its basic writings or concepts. He offered as evidence the statement of his client Williamson, in the 1944 convention, that "our teachers must take current issues and problems as the starting point for deepening the understanding of Marxism—Leninism.” He also quoted Robert Minor in the same convention. He reminded the jury that the Communist Party had deCided to launch a campaign around the Lenin Home Library. He recalled that both Green and Winter testified that this was done all during the Communist Political Association period. (One thousand subscriptions to the twelve volume Lenin set had been sold. During the year, 19,000 pieces of Marxist literature had reportedly been sold or distributed by the Party.). In developing this first contention, Isserman admitted that Browder had exerted influence which ”tended to destroy the Marxist— Leninist character of the Party." He went on to remind the jury that Foster, in his deposition, admitted that "our Party . . . made a serious mistake in following Browder's soft ling] and the Party wOuld correct itself from this error." This would seem to be a contradiction in Isserman's argument as it leaves the issue in an ambiguous form. Did the Party and the defendants abandon and then 203 readopt Marxism-Leninism, or didn't they? He concluded by asserting his argument that Marxism-Leninism cannot be "the villain which brought crimminality to the open, political, constitutional activities of speech, press and assembly, which make up the activities set forth in the indictment." The second contention deve10ped by Isserman was that the differences brought out in the government's case, the differences between Browder and Foster, the differences between the Communist Political Association and the Communist Party of the United States of America, the difference in the interpretation of Marxism—Leninism in those two periods was not a difference connected in any way with teaching and advocating the overthrow of the American government. He argued that it became abundantly clear to the Party that the Browder policy was "wrong -- unreal -- unMarxist." Here he made an offer of proof. "The Party documents of the period tell a story;" He told the jury that the clear record of the Party literature is "obscured only by the Budenz interpretation of Aesopiansim which belongs to Budenz and Budenz alone." Without this interpretation, he argues, the prosecution could not have spun its "cloak and dagger theory." He next asserted criteria for judging the defendants on the issues of the indictment. "What the defendants meant by basing their Party on Marxist-Leninist principles must be determined and can only be determined from the application by the defendants of those principles to the situation which existed in this country in the period 1945 to 1948." He implied here that the defense case 204 can be made out from documents (Party literature) introduced by the government. ”All the facts are before you——in major essence-— in the documents submitted by the prosecution." As evidence, he pointed first to the Foster letter of January, 1944, as a protest of Browder's policies at the time they were being instituted. In reviewing Foster's arguments. Isserman did not avoid the language of the Marxist, but cited to the jury, for example, the political objective of the Party of mobilizing labor's forces politically, “and combining them with all other democratic win-the—war forces necessary for an election victory over reaction." Foster's arguments here included quoting Grover Cleveland in 1888 on the existence of trusts and Franklin Roosevelt in 1936 on "Economic Royalists," a statement in which the word "overthrow” was used. He quoted Virgil Jordan, President of the National Industrial Conference Board, who proposed that the United States must police the world with atomic bombs. It was this menace of imperialism, Isserman charged(still arguing from the Foster letter), which Browder ignored and them embraced--tbe menace which Foster recognized. This alone, Isserman insisted to the jury, was the basic difference between Foster and Browder. He then dealt in refutation of certain of the witness Budenz's conclusions. Budenz had madelnuch of the fact that Foster and others in the Party had stated that the class struggle was still with us and would continue in the postwar period. Isserman admitted that Foster talked about Socialism, but not as an immediate issue. It would, rather, "be in for fresh discussion." 205 ”He had a right to say this," Isserman told the jury, "and the American people had a right to hear it." He gives no source for the statement here, but is presumably quoting from the 1944 letter or from Foster's deposition in this case. All these points that were in the Foster letter, he argued, kept reappearing in the "discussion period," in the Duclos article, etc. Here Isserman prOposed the establishment of the Foster letter of January, 1944 as a basic statement of the post-1945 Party's political and rhetorical position. In refuting the point that Foster did not immediately publish his letter, Isserman argued that he did not want to «disturb the war effort nor split the Party, as there was strong support for Browder in the Party at that time. He pointed to this analysis of the situation that had come out of the give and take of the discussion of the Draft Resolution at the 1945 convention.330 The second document Isserman discussed was the Duclos article. This was the second item of Party literature introduced by the Government which Isserman told the jury must be looked to for the "real case." He admitted that the article did have an influence in the Party. He argued that no foundation had been developed for showing that the article had anything to do with force and violence. No evidence had been brought by the government that any defendant had seen or heard about the article before its publication in this country in May of 1945. Isserman considered the several arguments the government developed concerning the 330 15 R. 12093. 206 Duclos article. He considered the government's interpretation of the article, the issue of whether the government had successfully connected the article to a foreign source, whether it constituted instruction or advice to the American Party. He left the jury with the question of whether a conspiracy could be born out of a magazine article. He next attacked the credibility of the Starobin letter connected with the government's interpretation of the Duclos article the contending that there had been no evidence that this letter was any part of the conspiracy. "You would expect better evidence than this from the F.B.I." He reminded the jury that at no time during the indictment period did the government call on the Communist Party to register as a foreign agent under the Vborhis Act, suggesting again that no legal evidence existed. He concluded by reminding the jury that the entire debate and the change of the Party had been published to the world. He argued that no evidence had been produced that defendants had met together before June 2nd, or in April or May of 1945 to plan a conspiracy. He reminded the jury that only five of the defendants were on the National Board of the Communist Political Association. Isserman's client Green had not initially been elected to the new National Board of the C.P.U.S.A. Green and three other defendants did not get on the National Board until July, 1947, two years later. He delivered the basic legal refutation in regard to circumstantial evidence. "The only reason this group of defendants is brought to you for trial is 207 because they happened to be the National Board members on July 20, 1948 the day the indictment was returned ." "Now, the prosecution will tell you, 'Well, it is circumstantial evidence.‘ The Court will give you the test of circumstantial evidence. Any hypothesis consistent with innocence must be accepted." He then challenged the jury with the rhetorical question, "Can you rule out that these published activities, broadcast to all the people of the United States and of the world, were not a conspiracy? That 1 they were the activities of a political party, that they were constitutional activities?" Coming to another paragraph in the indictment, Isserman developed arguments concerning a third basic document in the case, the Party's 1945 Draft Resolution. This would seem to be his third major contention. He stated the charge in the indictment, that the defendants, and others would convene a meeting of the National Committee at which the Draft Resolution would be considered and amended. He immediately challenged the jury with the question, "Now isn't that the silliest thing you ever heard?" "Why was it necessary in a conspiracy to have a public meeting?" These rhetorical questions represented Isserman's basic arguments here. He reminded the jury that the Draft Resolution was considerably amended at the 1945 convention. He recalled Carl Winter's testimony that he (Winter) had instructions from his state convention (Michigan) to change the name of the Party and had carried out those instructions, even though he personally was against it. This, Isserman told the jury, was in accord with democratic proceedings. 208 In reviewing the Drafthesolution, Isserman emphasized several constructive statements in it. He argued that the resolution did not repudiate the ballot, as Mr. MCGohey had charged during the trial. He read a number of long quotations from the Draft Resolution itself to suggest that the document did not advocate the abandoning of democratic methods. He included the "pledge" in the last paragraph of the resolution to "cooperate with all anti-fascists and all democratic forces to achieve these objectives." He suggested that the Draft Resolution was an important document in that the Party took a strong stand against the monopolists who were "preparing to crush the liberties of the American people, wherever it mon0poly was preparing to lower living standards, and much more seriously to all of us preparing to lead us perhaps into an atom bomb war." He then restated his proposition, which be termed an hypothesis: "Certain documents which the Government has put into the case show beyond any shadow of a doubt that the Communist Party was working to develop a political program for the American peeple. However you consider it, you must be left with the fact that you cannot eliminate this hypothesis of political activity, carried out by the Communist Party through the ballot, through education, in its program adopted in 1945." Isserman concluded with a few remarks about his two clients, Williamson and Green. "I would not like to tire your patience unduly but I would like to spend a few minutes on my clients Williamson and Green." This would indicate the importance of the 209 substantive issues of the trial as opposed to the activities of the individual clients in the minds of the several defense attorneys. Isserman admitted that Williamson had been active in the formation of the Communist Political Association and in the reconstitution of the Communist Party. He insisted that the Government had produced no evidence showing that Mr. Williamson "either conspired or showed any sign or any indication of conspiring to teach or advocate the overthrow of the government." He reminded the jury that Williamson had urged the calling of the 1945 convention. "Now that is not the action of a conspirator. It is wholly inconsistent with conspiracy." He reviewed the testimony of the Government witnesses Blanc and Calomiris concerning the activities of Williamson. Both witnesses had testified to hearing Williamson speak or lecture at Party meetings, but Isserman recalled to the jury that neither witness had been able to credit Williamson with any remarks connected with overthrowing the government. Essentially the same argument was available in regard to the defendant Green. A considerable number of Green's writings from the period 1030—1938 were introduced by the prosecution during the trial. Green had participated in “the formulation of the United Frent strategy and had participated in the drafting of the 1938 Party Constitution which expressed this doctrine. This represented, Isserman told the jury, a change in policy which represented changed conditions. He developed an analogy comparing the change in policy, to the New York public transit fares. "Just as if we would be advocating now, let us have a ten-cent far when we have it." 210 "So as conditions change programs change. The' very weakness of the Government's case here is to put as much stress on a program no longer applicable." He next reviewed the widence of Green's activities during the indictment period, 1945-1948. Several F.B.I. witnesses had testified that they had heard him lecture, but some had reported what he had said. Isserman admitted to the jury that "now it is true that in his early days he committed some indiscretions.“ Green, like others, had for one thing sworn falsely in connection with passport applications. However, the jury was told, Green had not "abandoned the ballot" during the indictment period. He had run for the office of Mayor of Chicago. He had also spoken over the radio several times on behalf of Claude Lightfoot, another Party member who had stood for public office. Mr. Isserman closed his summation by quoting Greeen in one of those radio broadcasts. "A great many people are still confused, even poisoned on the issue of Communism. But we have confidence in the American people, in their native intelligence, their honesty, their love of democracy . . . " He then paraphrased this to the jury: "Your native intelligence, your honesty, your love for democracy and truth itself require a verdict of acquittal in this case for Green, for Williamson and for all the other defendants. Your verdict of not quilty will support the institution of American democracy and will enable America to go forward in its traditions and not as a nation ridden by fear, cramped by cencorship and turned over to reactionary forces." 211 In his opening address, Isserman had developed the most direct and specific answer to the prosecution of the several defense lawyers. He had reviewed the indictment, paragraph by paragraph. His principal theme had been the political nature of the charges in the indictment. He had concluded his opening speech with an appeal to the principle of free speech, arguing that the jury could not find that that phase of American life when people could expound and try every idea was over. In his summation, he chose to base his arguments on the basic documents of the case, which, he argued, did not in themselves show a conspiracy. In reviewing each of the three basic documents be dealt with (the 1944 Foster letter, the Duclos article, and the 1945 Draft Resolution, and the activities of the two defendants he was representing), he argued that the Government's case was based not on the Party's interpretation of these documents or what the defendant's thought, but on Budenz's interpretations exclusively. He emphasized that no overt acts were alleged or shown. In regard to the central issue of whether Marxism-Lenisism constituted the teaching and advocating of overthrow of government, his argument regarding Budenz's testimony was essentially true. It was essentially a refutation of the prosecution's argument that the Party had abandoned Marxism-Leninism in 1944 and that its readoption in 1945 was a conspiracy under the existing law. He relied on certain basic documents and the Party careers of his two clients as the sources of his invention. 212 His organization was a topical pattern structured as refutation. It was a topical pattern structured on the basic documents, although Isserman was reviewing a time period also, 1944—1945. It was primarily a refutation of Budenz's interpretation of the political significance of these basic documents. The style was essentially factual rather than emotive, although more emotive language was used than in his opening address. For the Defendant Winston: Louis F. McCabe In his opening address, McCabe had developed a biography of his client, Henry Winston, and had set out the defense position on two basic points. These were the matters of Party literature and the credibility of government witnesses. He had told the jury that the defense would take one of three positions in regard to the government's introduction of Party literature: the defendants would proudly claim authorship and sponsorship of some documents, there might be an outright denial of the authenticity of other documents, and the authenticity of other documents might be admitted but the responsibility of the defendants or of the Communist Party for them might be denied. 0n the subject of witnesses, McCabe had predicted in his opening that the government would produce "undercover witnesses" and "backsliders" who had abandoned the Party. He had asked the jury to judge the reasonableness of the government's position that the Party's entire public program was merely a sham to hide illegal activities. 213 Mr. Isserman had completed his summation by the noon recess on the first day devoted to summations, Friday, October 7th. Mr. McCabe spoke during the afternoon session of that day?31 He had been third in speaking order on the openings and spoke second on the defense summations. He did not treat the documentary evidence but devoted his summation_to the question of "stool pigeon" witnesses. He began his remarks by complimenting the jury on their attention during the trial and commenting on the heat and the World Series, which was then in progress. He informed the jury that the score was 1 and l in the sixth inning at that time. He suggested the high duty of a jury by referring to a ritual in certain jurisdictions where the baliff intones to the jury, "And for his trial this defendant puts himslef upon his country, which country you are." He told the jury that for all intents, and purposes, they were the country of the defendants. Immediately following this brief conciliatory introduction, McCabe oriented the jury to the ground he would cover. The topic was to be "stool pigeon" witnesses. His attempts to characterize informers were informal, personal, and blunt. He told the jury that the word "informer" was unique in the languages of the world in that it stood by itself without requiring the use of adjectives. He referred to his Irish ancestory by remarking, "I come from a race which has been particularly cursed with informers, who turned over to the British Crown when the patriots were struggling to free their country." He illustrated this by referring to a recent motion picture, entitled ”The Informer" and describing the 331 The test of this speech is found at 15 R. 12124 - 16 R. 12162 inclusive. 214 character Gyppo Nolan as portrayed by Victor McLaglen. He then told the jury that the prosecution would try to picture their informers as "patriotic persons who are saving the Government of the United States from being overthrown by the Thomas Jefferson Club or by some other individual." McCabe rapidly moved on to point out that the F.B.I. witnesses apparently did not have to go through a lot of red tape to draw their expense money from the government. He quoted Edward Livingston of the Colonial era and New England District Judge Anderson of the World War 1 period denouncing informers. This lent some historical credibility to what was an argument drawn from popular prejudices. He then deplored the "shabby trick" of using the "stool pigeons" as a means of introducing in evidence certain literature. He accused the government of using this device to "envelop that literature in the false atmosphere of secrecy and conspiracy which was a part of this whole case." McCabe began his review with the witness Herbert Philbrick, the second government witness (after Mr. Budenz) and the F.B.I. witness giving the most extensive testimony. At times he seemed to be honest and open with the jury, telling them to imagine "this testimony in its most harsh and damaging light." At other times he was less than candid. The Party's instructions to Philbrick requiring him to conceal his Young Communist League membership and his subscription to the _D_a_i_11 MEG—r were dismissed by McCabe as "hocus pocus" created in Philbrick's imagination. He argued that Philbrick's testimony on the 1945 New England Convention was un- necessary because the convention was reported publicly. 215 Philbrick's most damaging testimony had concerned a course of instruction given by Fanny Hartman, an official of the Party's District One in New England. The defense had called Miss Hartman as a rebuttal witness, and McCabe relied on her testimony regarding the discussions she had led on the topics of war and revolution and the subsequent report that was made to the District One Convention. The testimony of the two witnesses was flatly contradictory. In the class discussions concerning war and revolution, for example, Hartman had testified that the expression "armed band of workers" had been used only in reference to "historical'phageg‘ of the overthrow of the Czar." McCabe also argued to the jury that the Court and the prosecution had been unfair in not letting the defense and the jury see Philbrick's F.B.I. reports. He insisted that he had offered during the cross-examination of Philbrick to let the reports go to the jury without the defense seeing them, arguing that they would not have corroborated Philbrick or the other "stool piggion" witnesses. He reminded the jury that the Government had brought no rebuttal witnesses to counter the Party witnesses Hartman, Hood, and Schirmer. He told the jury that the witnesses Meyer and Nowell would not be included in his talk because they had left the Party "before getting mixed up with the F.B.I." He specifically limited his review then to an arbitrary group of witnesses whose credibility be challenged under the ancient attitude of distrust and rejection of the informer. 216 The "informer" group of government witnesses whose testimony McCabe characterized included, in addition to Philbrick, the witnesses Nicodemus, Herron, Calomiris, Younglove, Cumings, Blanc, and Hidalgo. The testimony of these witnesses tended to be concerned with Party schools and conversations the witnesses had had with Party officials. McCabe reminded the jury that much of the testimony was not related to the defendants and that guilt was personal. His rebuttal techniques in v regard to these witnesses were essentially that of ridicule of the .‘ witnesses themselves and straight denial of many of the alleged statements in evidence. In reviewing the testimony of the witness Nicodemus, who had been arrested in Pittsburgh on a criminal charge and was then contacted by the F.B.I., McCabe told the jury, "Now Nicodemus contributes his couple of lurid bits." The witness Herron had testified to a lecture by Wageknecht concerning the need for armed revolution in the United States. McCabe could point to a straight denial by the defense witness Florence Hall in regard to this lecture at a 1946 leadership school, but could not refer to Wagenknecht who had not been called back in rebuttal. The witness Calomiris had testified to hearing the defendant Green give a welcoming speech to new party members. McCabe here employed heavy sarcasm in referring to Miss Calomiris' activities as a photographer (she allegedly took pictures at party functions and 'sold' them to the F.B.I.) while offering no rebuttal to the testimony concerning the defendant Green. The witness Younglove, a former employee of the Laclede Gas Company in St. Louis, had testified that a Party instructor named MacLeod had 217 stated that the ballot box was not the answer and that violent action would be necessary to bring socialism to the United States. McCabe reminded the jury of the brevity of Younglove's testimony and reminded the jury that they had been denied the opportunity to see Younglove's notes. The witness Cummings, also an F.B.I. witness, had attended the Party's National Training School in Chicago. Here again, McCabe attempted to minimize and ridicule the testimony. He reminded the jury that Cummings had taken advantage of Gus Hall's hospitality and had even recruited his own relatives. Cummings had offered no direct testimony on what the defendant Hall had said, but had concentrated on statements made by a lecturer named Siskind at the National Training School. McCabe here refuted Cummings' testimony by reviewing the testimony of rebuttal witnesses Hashmall, Hall, and Krchmarek. Hashmall had tried to get into the record that "force and violence had been visited on his home and family." Miss Hall and Kschmarek had testified that Siskind's teachings had been within patriotic limits, giving as a typical lesson the argument that American class traditions were second to none. The example in the lesson had been the struggle for an eight hour day, during which the Party had cooperated with other working class groups. McCabe pointedly reminded the jury that Cummings was not brought back on rebuttal. McCabe dismissed the testimony of John.Victor Blane, a Party member from 1934 to 1936, with the statement, "I don't recall that it had much relevancy to the charge in he indictment." He replied to the extensive testimony of the Government witness Hidalgo by attacking the witness's credibility and reviewing the rebuttal testimony of the 218 defendant Gates, especially on the important point of the use of the History of the Cgmmunist Party of the Soviet Ugigg as a blueprint for revolution. Concluding his treatment of the "stool pigeon witnesses," McCabe began his conclusion with the unusual announcement that he would not discuss his client Winston. He was going to leave that to someone else! "Winston's name shouldn't be mentioned in the same talk with these people." In concluding, he reminded the jury of the thorough searchthe government had made of the private life of each defendant. He accused the government of producing no direct testimony evidence regarding the defendants and of resorting to padding and stage—setting. He dehried the government's failure to produce a bill of particulars. He pointed to a lack of re-direct examination of the government witnesses following defense cross- examination, suggesting that the witnesses were rushed on and off of the witness stand, which was patently not the case. He closed by reminding the jury of their oath and their duty. It could be taken as a useful decision for one of several defense lawyers to devote a summation to the general credibility of prosecution witnesses. However, McCabe's characterizations of the government witnesses as "informers" and "stool pigeons" cast him in the role of a nineteenth century antagonist that was not generally relevant to the United States of 1949. In his opening speech, McCabe had dealt with both Party , literature and the credibility of government witnesses. He devoted his entire summation to the question of "stool pigeon" witnesses, his principal source of invention being the ancient symbol of the "informer," drawing on the history of the Irish people and the labor movement. His arrangement was entirely topical, structured on the several 219 government witnesses whose testimony be reviewed. These units were characterized by ad hominem arguments attacking the personel credibility of the witnesses. At only a few points were these attacks relevant. For example, the competency of the witnesses was seldom an issue. Damaging government testimony was often simply denied. His style was simple and vivid, with an interesting use of nuance words and blunt statements of assertion and denial. He was alternately candid and abrupt in his refutaton of government testimony. For the Defendants Hall and Thompson: Richard Gladstein Mr. Gladstein had spoken last in the opening speeches and had dwelt on Party literature, Party activities, and the political aspects of the trial. He had argued deductively that the trial was a political trial of literature and activities that were perfectly legal. He did state one of the basic issues of the case, by suggesting that there was a substantial difference between predicting that something may happen and actually advocating it. He did not, however, develop this as a major theme of his opening. His developed conclusion in the opening speech was that the literature of the Party, especially the four basic books the government relied on, had been published years before the indictment, and that the activities of the Party were those of a legitimate political party. In the summation, Mr. Gladstein spoke third in order, during the morning session of Monday, October 10, 1949. He first developed the application of the First Amendment to the free speech issue in the case. He next developed a reified discussion of the "trial of books and ideas,” 220 which served as the redeve10pment of the party literature issue he spoke to in his opening. Consistent with the other members of the defense, he persisted in structuring political issues on which to develop his arguments. He argued that the trial was a "sign of the times." The trial was grouped with various economic problems, money trusts and the use of 'force words' by the government as part of a pattern of war hysteria. He told the jury that the legal activities of the Party were not peripheral to the case, as the government had argued. In reviewing the basic structure of the case, he reminded the jury that Communism was legal in the United States. He next reviewed the Smith Act, emphasizing that guilt required criminal intent. He argued that the 1948 Draft Resolution revealed the statekof mind of the defendants, telling the jury that all of the speaking and writing of the defendants and the Party was also a question of intent. He reminded the jury that much of the basic Communist literature was listed in the New Yerk public library. He then suggested to the jury that trusts and fascism were the actual issues. Describing Party activities as constituting an anti— Fascist coalition, Gladstein argued that even the Budenz view of these activities still placed them within the protection of the Bill of Rights. He insisted that the Party was justified in looking to the Schneiderman Case in 1944 as validating their legal position. The real issue, he said, seemed to be books and ideas. "Books are the real defendants." Here be quoted Jefferson and Lincoln on the subject of cencorship. He also referred to Sam Clemens and the Nazi book burning. 221 Following a recess, Gladstein immediately put it to the jury that even if they became convinced about the books, there was still the question of defendants' individual intent. Referring to the 1944 Schneiderman decision on which he suggested the defendants relied, he reminded the jury that the Smith Act was in force in 1943. Implied here was the argument that the government failed to indict members of the Party under the Smith Act during the war period and thereby established a presumption that their activiteis were lawful. An evident fallacy here was that the indictment covered activities during theiperiod 1945— 1948. Gladstein restated the book argument, suggesting that it was absurd to take the books as a blueprint for revolution. He offered a refutation of the Budenz testimony, reminding the jury that the court had refused his efforts to have a series of articles written by Budenz on Marxism-Leninism introduced as evidence. He argued that the articles would have shown that what he had written about Marxism—Leninism was not the same thing that he had said on the stand. He reminded the jury that neither Budenz nor any other witness had been able to testify in substance or effect that any defendant had said that to him Marxism-Leninism means "force and violence to overthrow the government." Lastly, Mr. Gladstein reviewed the positions-of his two clients, Thompson and Hall. Hall, he angrily told the jury, was in the Navy in 1945, when the period of the indictment commenced. Hence, he argued, it was not the men, but the Party which was indicted. Assigning this to a conspiracy between capitalistic and fascistic elements, he told the jury that Mr. Hall and the other defendants made no apologies,’ but did not accept responsibility for the distortions and perversions ..1. .r. fin... . 222 of their beliefs that the government brought. He reviewed three units of evidence relative to Thompson and two classifications for the statements by Hall that were submitted as evidence by the government. His review seemed to be a very workmanlike job of minimizing the effect of these statements. Here the testimony of government witnesses Hidalgo and Blanc was ridiculed as being distorted and unrepresentative. The "exclusive" classes of statements dealt with were represented by one example each. The class of "revolutionary" statements ("Socialism is a question for today)" was answered=by merely broadening the definition and simply denying the government's definition. The second.slass of statements concerned "security," and the example employed concerned Hall admonishing Party members at a meeting in a private home for bringing their autombiles and parking them nearby. Gladstein justified his client's. actions here by recalling the testimony of the defense witness Frank“ Hashmall about his home's being damaged after a picture of it had been published in the newspapers and he was identified as a leading communist. Here Gladstein developed an analogy with the early Christians who maintained a certain secrecy to avoid persecution. He suggested his clients' credibility as family men and dedicated politicians and referred to Thompson's heroism during the war. Finally, he linked the Taft-Hartley lavor law with the government's prosecution in this case, charging that the'same mentalitygjas involved. He equated the judgment the government asked for with the Peter Zenger decision. In his conclusion, be quoted Lincoln's letter to Marx, "The strongest bond of human sympathy outside of the family relation, should be one uniting all working people of all nations and tongues and kindreds," using this to suggest the irrelevance of the government's case, about "this international (conspiracy) business." . 223 He alerted the jury to the government's use of quotations taken from context. He concluded with a listing of seven attributes of American life; independence 6f thought, the right of non-conformity, fearlessness in expression, a continual effort to encourage new and progressive ideas, tolerance, humaneness, and fair play. Suggesting that it would be the government's position that the defendants were f. against the American way of life and that the prosecution was defending i it, be listed these seven attributes of American life and told the jury a that the prosecution of men of the political views of the defendants was definitely not American. He left the jury with an appeal to build a monument to free men by freeing the defendants with their verdict. Gladstein summed up in a plain style, but with uneven organization. He constantly tried to structure political issues, such as trusts, fascism, and censorship of books and ideas. This was constantly mixed with the defense rationale in the case, iggé, that the defendants were innocent of criminal intent. The invention effort, then, was to enlarge the issues of the trial to include economic, political, and social issues and to suggest that the government was guilty of political persecution. In an effort to communicate this to the jury, he made use of several items of 'Americana,‘ such as quoting Lincoln on censorship and Clemens on book-burning. His refutation of the Budenz testimony was both relevant and competent. He also devoted more time to a refutation of other government witnesses and evidence than other defense counsel. However, the principal method of refutation oflnuch of the oral evidence seemed to be a ridicule of the government witnesses and a challenge of their veracity. He suggested the 224 ethos of his clients and immediately went to an attack of the Taft—Hartley law. His peroration concerned a patriotic appeal based on an arbitrary definition of Americanism. For the defendants Davis, Gates and Potash: Harry Sacher On the basis of his speaking, examination and cross-examination _of witnesses, and colloquy with the court, Harry Sacher was the most r‘ aggresSive of the several defense counsel. He was also among the youngest. In his opening address Mr. Sacher.had introduced himself as a labor lawyer and had introduced his three clients by their political and organizational titles. He then made a few observations about the case. These were two in number: that the defendants were within their constitutional rights relative to the free speech concept and secondly that the Party's 1945 Draft Resolution.represented the defendants' true intent and successfully refuted the government's case. He spoke fourth among defense counsel in summation, as he did in the openings. Mr. Sacher delivered his summation during the afternoon session of Monday, October 10th, following Mr. Gladstein in the morning. He began quietly by discussing the technical nature of the indictment, suggesting to the jury that the key word was the term "agreed." That is, on both counts of the indictment, the jury must find that the defendants "agreed" to engage in the described conspiracy, that that was their intent. He reviewed the doctrine of reasonable doubt, insisted that the trial was a trial of the whole Communist Party and commented on the awful respon— sibility of the jury. 225 He then suggested that there was no precedent in this country for the Smith Act (not true, unfortunately) and came close to usurping the Court's function in charging the jury as to be limits of their duties and responsibilities. He became almost embarassingly candid with the jury by suggesting that "some of you may have connections of some kind which you fear may suffer unless you return a verdict of guilty. Some of you may want to acquire connections which you may think may suffer." He told them that they were answerable to no one except their own conscience for their verdict, "unless it be-to the conscience of our country in time to come." He next deve10ped an apologia for the activities to date of the defense counsel! If the jurors did not approve of all that defense counsel had done, he asked them not to "take it out on their clients." In beginning his argument, Sacher quoted from McGohey's opening address regarding the 1944 convention. Eight of the defendants had been present at the convention and had voted to form the Communist Political Association and the program for "peace" formulated by Earl Browder. "The prosecution asks you to believe," Sacher told the jury, "that the defendants renounced their 1944 ideas and dedication less than twelve months thereafter." On the basis of this argument, he insisted that the most critical question in the case was: "What did the Party teach and advocate during the three year period April 1, l945—-June 20, 1948?" Sacher then went to the question of the nature of the conflict which led in the first place to the formation of the Communist Political Association and in the second place to the so-called reconstitution of the Communist Party. He here referred to Foster's letter of 20 January, 1944 as the most important document in the whole case. He developed a long analysis 226 of Foster's letter suggesting that there was no disagreement between Foster and Browder on post—war objectives and even that Foster was more devoted to "peace" than Browder. He then analyized Dennis's report to the National Committee in June, 1945 to the effect that Dennis had taken the same position as Foster. After a short recess due to the extreme heat, Sacher suggested to the jury that the several reports and articles he had reviewed and analyized for them contained no advocacy of force and violence. The single question raised in these documents, he insisted, was: "How is the peace of our own country and the peace of the world to be preserved?" He then somewhat angrily asked the jury, "Now what must men do to have their words believed? Must they write them in their own blood?" He then stated that the Communists of the United States had done precisely that, suggesting that several of the older defendants had been in prison for their beliefs and that Gates had fought in Spain. Sacher persisted in arguing that the defendants and the Communist Party had fought for peace and against unjust wars. He deve10ped a literal analogy with the expression "My country right or wrong," comparing it with the similar expression inscribed over the entrance to Buchenwald, "recht unrecht my fatherland." Suggesting to the jury that he was himself Jewish, he developed a polemic on political responsibility and the horrors of an atomic war. He then developed for the jury his theory of the prosecution of the case, which held that it was a political reprisal against the Communist Party. Arguing that the oft-quoted History of the Communist Party of the Soviet Union was written in 1938 and the Smith Act enacted in 1940, he posed the question of why no prosecution was instituted against the Communists until July 20, 1948. He warned the jury that he was going to 227 speak bluntly in answering this question. Grandly absolving prosecutor McGohey of guilt, he then told the jury, "This came, this prosecution, from the Big White Father, and it came when it did for political considerations." His theory involved the.3act that'the indictment was returned two days prior to the opening of the convention of the Progressive Party in Philadelphia. In 1946 the Communist Party had withdrawn several of its own candidates and had supported the Democratic Party. Sacher here suggested that the government had reports from Philbrick, Herron, and Younglove as early as 1946. However, there was no prosecution in 1946 or 1947. But in 1948, he theorized, when the Communist Party announced that the Democratic Party and its candidate no longer deserved the support of the progressive forces in the United States on the ground that Truman "was not adOpting a course designed to preserve the peace and prosperty of our country, and comes an election campaign in which it is charged then, as it is being charged now, that Democratic candidates are being supported by Communists and the need arises to repel that charge, and so the indictment in this case takes on a twofold aspect." The theory, then, held that the indictment was a punishment for political defection and a charge of a willingness to endanger the civil liberties of the country in the interests of furthering a candidacy. He then suggested that after the election purposes had been served, the prosecution took on another meaning, iggg, as an instrument in the cold war. He developed the argument that conviction in this case would be a threat to world peace! Arguing from several statements from the 228 WWW which he read to the jury after pleading for their patience, he demonstrated that the volume predicted (in 1938) that another imperialist war was coming. Some of these quotations did constitute effective predictions, but Mr. Sacher developed from them the argument that World War II would not have occurred if "this united front among the democratic states had been carried out in the eight years proceeding the formal outbreak of the war." He immediately challenged the jury, however, with something of an absurdity. "Is it voices that even today cry out' fats; unity and peace that you want to silence? Is that what we want to doRuhIs that what you want to do? Shall we crush the one most powerful political voice in this country which speaks out in behalf of peace because of an illusory, false charge?" With an awkward transition, Sacher then began a review of principal government witnesses. Developing a sarcastic 2g;.hnmenin attack on the principal government witness Budenz, Sacher derided his recent appointment as a professor and argued that Budenz decided to leave the Party only when his Party career was on the skids, an argument that had been advanced several times before. The telling points regarding Louis Budenz were, however, seemed to be that his testimony was contradictory as to when he decided to leave the Party, and that he had participated in the June, L945, National Committee meeting prior to his departure from the Party. The government witness Meyer, who had been educational director of the Party's Chicago Workers School during the 1939-1940 period, was 229 reviewed next. Sacher pointed out here that the government had not asked Meyer anything about the nature of Marxism—Leninism. While admitting that the defense had not cross—examined Meyer on Marxism—Leninism, Sacher pointed out that the government had the burden of proof. He asked the jury rhetorically why Budenz was to be considered the expert on Marxism-Leninism. In discussing the History of the Communist Party of the Soviet Union on direct examination, Meyer had referred to it as a "compendium" of ideas as opposed to Budenz's reference to it as a "Bible". This, Sacher told the jury, established a reasonable doubt. He also pointed to the government witness Nicodemus as having been expelled from the Party in 1946 for an alleged Jim Crow attitude. At 4:45 P.M. court was recessed until 10:00 A.M. on Tuesday, October 11th. On the morning of the 11th, Sacher came before the jury to review the case against his clients individually. He announced at that time that the defendant Benjamin Davis, Jr. had relieved him as counsel and thatzhe would not sum up for Davis. "You ladies and gentlemen will have to speak for him." This was an appeal for sympathy from the jury, as Judge Medina had earlier denied Mr. Davis permisssion to sum up for himself. In summing up for his remaining clients, Sacher would often go off on brief tangents. He took Gates's career through the depression, his fighting in Spain "to defend the United States." He attempted to justify Gates' falsifying information on his passport "because the highest interests of his country demanded it." He quoted Gates on direct 230 examination as saying that his policy on war was to bring it to a just and democratic peace as quickly as possible through a peoples' coalition. Sacher reminded the jury that Gates had been a paratrooper and had been honorably discharged on January 17th, 1949, the day the trial began. Sacher here asked the jury, "Could he be a conspirator?" Next, Sacher summed up for the defendant Irving Potash, who had been mentioned infrequently during the trial and had not taken the stand. The government witness Nowell had testified that he had attended the Lenin Institute in Moscow with Potash in 1931. One of the courses of instruction had been "Civil Warfare." Sacher offered the jury only a rather harsh direct denial. He charged that Potash was on trial solely because he was a member of the Party's National Board. He concluded by reading to the jury a testimonial to Potash written by the defendant Davis sometime earlier. Moving to the defendant Henry Winston, Sacher told the jury that he had become quite impressed with Winston. He traced Winston's career through segregated schools in Missouri and recalled Winston's testimony regarding a lynching he had witnessed in Marysville, Missouri. He dismissed Winston's passport trouble and reminded the jury that Winston had been commended by the Army. Sacher concluded by quoting from an old novel:"Man's dearest possession is life and it is given to him to live but once. He must live so as to feel notorturing regrets for years without purposes. He must so live as not to be feared by the shame of a cowardly and trivial past. All his life and all his strength must be given to the finest cause in all the world, the fight for the liberation of Mankind!’ Implying that his clients 231 were but selfless men, he asked for he acquittal of all of the defen- dants. Sacher's invention began with the prosecution argument that the defendants renounced their 1944 ideas and dedication less than twelve months thereafter. He structured as a critical question in the case the question of what the Party taught and advocated during the three- year period from April 1, 1945 to June 20, 1948 (the period of the indictment). This first point of invention, then, was refutation. He based his arguments here on the Foster letter of January 20th, 1944, and the Dennis report to the National Committee in June, 1945. These were both long documents which Sacher insisted showed no essential disagreement with Browder on objectives and further indicated that defendants Foster and Dennis were even more devoted to peace than Browder had been. After a short recess due to the heat, Sacher's next point of invention was a political argument drawn from the radical Left. This was that the trial was a political assault on the Communist Party by the Truman Administration and that conviction of the defendants would be a threat to peace. He developed this argument with statements from History of the Communist Party of the Soviet Union (Bolshevik) and with an attack on the credibility of the government witnesses. The arrangement of his summation was formed around these selected arguments. The reasoning consisted of stating apriori arguments (I. The Communist Party taught and advocated peace and progress during the period of the indictment and II. The conviction of these defendants would constitute a threat to peace) and demonstrating these arguments by drawing arbitrary causal conclusions from selected Party documents and 232 literature. A third argument (that his clients were selfless men) was based on the long length of Party service each client represented. Sacher's style was uneven, being both plain and emotive. He need both the language of the courtroom and that of the popular orator. He threw out some striking statements and challenges and became quite candid at times. The political theory of the trial developed by this speaker was extreme and poorly supported but represented a type of courage. It is therefore difficult to suggest the ethical proof he developed with the jury. While operating within the general value system of the jury, his arguments required an extension of belief in the area of class antagonisms and the extension of imperialism. Some of the rhetoric here and in some of the other defense summations drew concepts from the New Deal period, i.e., "Economic Royalists," and other concepts from Marxism. For the Defendants Stachel and Winter: George W. Crockett, Jr. In the opening speeches, Mr. Crockett had spoken second, following Eugene Dennis. His speech had been concerned with the right of free speech. In the summations, he spoke fifth for the defense, followed only by Mr. Dennis. Crockett, who practiced law in Detroit, had been acquainted with the defendant Carl Winter, the Michigan State Chairman of the Communist Party, and had debated against him in a public program in Detroit shortly before the trial cpened. In his Opening, Crockett had argued that the defendants' activities were protected by the First Amendment in that these activities were publicized in the Party press and that they had been preceded by "public discussion" within the Party as required by the Party constitution. He also developed the argument that the trial. 233 constituted a trial of a political party. His opening speech was brief and conciliatory. Mr. Crockett has reported that while be normally outlined his presentations to juries and spoke extemporaneously from a topical outline, he had carefully written out the entire presentation here and read it to the jury. "Much of it had been memoriggg so as to I give the effect of speaking extemporaneously in part." He had also reported that in his belief the principal issue in the Dennis case was whether the First Amendment prohibited ”the trial and punithent of pe0ple for agreeing to embrace and advocate, or embracing and advocating, a political philosOphy—-particularly one which might be at variance with the basic tenets of that Amendment or even of the entire Constitutuion." He reported that he accepted Mr. Justice Black's concept of the absoluteness of the First.Amendment and therefore believed that such a trial would be constitutionally prohibited. He admitted that acceptance of the ”balancing theory" of freedom of speech versus governmental necessity (as advocated by Mr. Justice Frankfurter) would lead one quite rationally to the opposite point of view. Mr. Crockett began his summation with a conciliatory appeal to duty. He suggested his strong belief in the importance of the case. "This is the most important moment of my life.” He told the jury that American writers had also contributed to Marxism—Leninism. He warned that fear might cause a dangerous precedent and further fascist reaction in the United States. He developed here an analogy with the Jews in Germany. He interjected that three months before he entered the cases 33 2Letter from George W. Crockett, Jr., Detroit, Michigan, to T.N. Smith, March 19, 1954. 234 he had publicly debated a political issue with his client Carl Winter. In dealing with the problem of prejudice against Communists, he was candid in suggesting the problem to the jury and suggested that they substitute "Democratic“ or "Republican" for "Communist" whenever that term was used. He told the jury that the evidence in the government's case was of two kinds, quotations from Communist literature and the testimony of F.B.I. witnesses. He suggested that the literature had been discussed by Gladstein and others and that McCabe and Sacher had(reviewed the testimonys meaning), the principal witnesses (presumably Philbrick and Budenz). "I shall discuss Nowell, Nicodemus, and Cummings." He immediately argued that "Informer" testimony was unfair. "Should Winter, from Detroit, be held responsible for what a Mr. McLeod says in a St. Louis school?” He then, without transition, stated that the “Negro question" was an important _ issue in the case, that the prosecution had brought the question into the case, not the defense, but that one could not discuss the Communist Party without discussing the Negro question. “It is central, not peripheral," because "in that question, you will find the basic application of all these social theories that the prosecution calls Marxism-Leninism.” He recalled the testimony of the witnesses Nowell and Nicodemus, who gave evidence to the effect that the Communist Party seeks to utilize the grievances of Negroes for the purpose of bringing about the establishment of a Black Republic in the Black Belt. He reminded the jury that this testimony had been answered by defense witnesses Davis, Winston, Sam Hall of Alabama, "and all of the other defense witnesses until it was ruled a peripheral issue.“ In commenting on the prosecution's implication that the Communist 235 Party had "used" the Negro question, Mr. Crockett stated angrily that "this makes my blood boil." He insisted that Negroes had proven their maturity, pointing to the nationally known singer Paul Robeson, who had been a defense witness. He hurriedly reviewed the Communist Party's record in Negro affairs, mentioning Scottsboro, Herndon, Davis' position on the New York City Council, and the fact that Winston held the second highest administrat ve post in the Communist Party. There followed a long and only loosely connected series of arguments designed to refute the argument that the Communist Party had 'used' the Negro issue. This series included an historical analogy between the Communist Party and the Negro underground railroad during the Civil War. The sources of invention in this summation were the testimony of the government witnesses Nowell, Nicodemus, and Cummings, the problems of the Negro community in the United States generally, the alleged facts concerning three Party meetings and four basic Party documents, especially the 1945 Draft Resolution and the 1945 Partleonstitution. Then, following a noon recess, and apparently a change in defense strategy, he developed refutation of the two chief government witnesses, Budenz and Philbrick. He developed three categories of "inuendos" by Budenz and relied on analogical argument to suggest that Communist activities were within accepted American traditions. His general frame of reference was the libertarian view of an America composed of democratic forces arrayed against undemocratic forces. He used personal reference to his own career, statements attributed to Lincoln and William Pitt, and some of the writings of Lenin. The arrangement of this speech was topical, structured on the issues and evidence that most interested him. This arrangement was apparently changed during the noon recess and the decision taken by the defense staff 236 for Crockett to deal further with refutation or Philbrick and Budenz. In developing his first issue, the evidence of Nowell, Nicodemus, and Cummings on the Negro question, Crockett seemed to review the testimony of these men rather little but took the occasion to argue his own views on the question. In regard to Nicodemus, he told the jury that all of that testimony had been answered by others, but then went on to suggest how angry he himself was at the argument that the Communist Party had 'used' the American Negro. He used the, by then, familiar argument that the y only 'force and violence' shown in the case had been against Negroes and labor unions. He interjected the argument that the F.B.I. was competent to discover small details of the lives of the defendants but was apparently incompetent to investigate fascist groups. He accused the government of demagoguery and of deserting the Civil Rights program. He told the jury that the trial, along with recent events, was an attempt to outlaw the Communist Party, which had been the "conscience of America." As a transition to his next major issue (that the indictment was based on three meetings and four documents) be discussed the nature of the criminal charge of conspiracy and extensively charged the jury, as he said the court would do later, as to the tests they must use in considering evidence of a conspiracy. In regard to this transition be assigned to William Pitt rather than Edmund Burke the statement, "But Your Majesty, you cannot indict a whole people." In developing his second topical division, Crokett immediately offered the point that these meetings and documents showed on their face that they were not a part of a conspiracy. He reviewed the three meetings referred to in the indictment point by point, arguing that they were featured by debate, or publicity, or both. The meetings were the June, 237 1945 Board meeting, the meeting of the Resolutions Committee that produced the Draft Resolution, and the 1945 Convention. Here be emphasized that Earl Browder had participated in the calling of the convention, that there were one hundred delegates in attendance, and that there were numerous press releases before and during the convention. In reviewing the documents, be argued that, when Foster's letter first came out, not everyone in the Party agreed with it. He offered this statement as proof thdt it was not part of a conspiracy, He argued [ as the reason for the letter not having been make public the fact that it was an election year (1944) and the other political parties didn't publish all of their intra-party discussions either. He also reminded the jury that several of the defendants were not in the Party councils at that time as they were in the service. When he came to the Draft Resolution and the 1945 Constitution, 1 he became angry. ”How can you label as a mystery or a secret a resolution that was discussed by thousands of people in meetings and in newspapers all over the country. Referring to his own cross- examination of Philbrick, he reminded the jury that Philbrick had admitted that the Draft Resolution had been considered section by section in the New England District convention and that certain amendments had been propsed. He also referred to his direct examination of Mrs. Hood, a defense witness who testified that certain proposed amendments to the new constitution had been sent in from Boston. 0n the basis of this direct refutation, he said to the jury, "You have heard the expression, 'Your actions speak so loud that I can't hear what you are saying.’ Apply this to the Communist Party, which practiced what it preached." ......rv.rr-.r_rt._.e,fi:._.. u. “f... _ . . _ .H. , . . 238 At the beginning of the afternoon session Crockett announced that he had decided not to review the 1945 resolution plank by plank. He told the jury that they had a right to take the Draft Resolution and the 1945 Constitution into the jury room with them. He intended instead, he announced, to review the testimony of the witness Budenz. This had been done by other summation speakers, principally Louis McCabe, and suggests the importance that both the government and the defense assigned to Budenz's testimony. The importance of this testimony was obvious, Crockett told the jury. "Unless you accept Budenz's testimony the entire case of the prosecution falls to the ground. He told the jury that the "sly innuendos and characteri- zations" of Budenz fell into three categories: 1) foreign influences, 2) Aesopian language, and 3) closed schools and meetings. The refutation of Budenz's testimony regarding foreign influences was little more than straight denial. It concerned the infamous Starobin, and Crockett assigned it as a figment of Budenz's imagina- tion and another instance of the prosecutions appealing "to some supposed bias or prejudice on your part against the Soviet Union." In regard to testimony concerning a personal representative or Stalin at a National Committee meeting, Crockett's refutation was not very inventive. "Why should Stalin do this when he has an Ambassador and Consuls all over the United States?" Such a testimony, he said, "is ridiculous on its face." He read and compared a 1935 Communist International greeting to Stalin with an 1864 greeting from the same body to Abraham Lincoln. They were similar. He quoted Lincoln again on the working people of the world. He seemed here to be using whatever link was available to suggest Comminist Party ties with 239 the American past and American traditions. He suggested as a reason "to put in its proper perspective all of these appeals to a so-called anti-Soviet bias which the prosecution assumes that you should have with reference to these defendants." While this might be a valid thing to do otherwise, it did not serve as a rebuttal of Budenz's testimony regarding Starobin. In coming to the second of Budenz's "characterizations," that of Aesopian language, Crockett reminded the jury that the government charged that this was "window dressing——for protective reasons." He read the basic statement from Budenz's testimony and pointed out that even Budenz's statement did not include the terms "force and violence." Crockett here defined the term "overthrow” as a "change or substitution of our form of government and is not illegal--even under the Smith Act." He offered as an example here the amendment calling for direct election of Senators, instead of by state convention. With this definition of "overthrow" he went on to argue that Budenz had not contradicted the Communist Party position that the‘Party "envisions the bringing about of Socialism through peaceful and not through violent means." In regard to Lenin's much quoted statement in the 1917 preface to his work Imperialism, Crockett told the jury simply that the prosecution had the wrong interpretation. He constructed a dilemma for the government by arguing that if the government did rely on Budenz's interpretation of this statement, then everything quoted in the trial from all of Lenin's works would mean just the opposite of what it said and the very heart of their case would fall. He again 240 developed the analogy with other political parties, which, he was convinced the jury would agree, had quite a bit of AesOpianism in their platforms also. He told the jury that the language in the Communist books was a "scientiric" language and offered as an analogy the technical language in law and medical books, relating to the jury that his wife, wo was a physican, and he would have trouble reading each other's pro- 1 fessional journals. This, however, still would not make these journals I Aesopian. F The third "characterization" developed in Budenz's testimony was "closed" schools and meetings. Crockett relied here on the testimony of Williamson and Winston, who had testified that Party members met in small groups as protection against informers. He again used what might be called the "American analogy" by suggesting that Republicans and Democrats were given to secret meetings also. He called the government's loyalty program a national shame and argued that many other organizations, such as fraternal groups, held closed meetings. A fourth "false characterization," apparently added extemporane- ously, concerned assumed names. Crockett admitted the testimony in regard to this but pointed to circumstances. The witness Harhmall, he reminded the jury, had not used an assumed name and had his house ransacked. Crockett told the jury that assumed names were not illegal without fraud. This topic seemed rather a strawman, but it was relevant that he pointed out that the defendants did not use assumed names during the indictment period. In beginning his conclusion, Crockett stated an argument that seemed basic to several summations and to the defense position. This argument 241 was that the trial constituted a significant opportunity for the Party, a platform to explain their views to the country and the entire world. The argument developed from this was that a man would not lie on such an occasion about the things to which he has devoted a lifetime of struggle. He then drew three "legal" conclusions from the trial, to the effect that none of the three meetings, and none of the four basic documents, nor the claims of.Aesopianism, or foreign influence or assumed names supported the prosecution's theory of conspiracy. He very briefly reviewed evidence concerning his two clients specifically, pointed to testimony or defense witnesses supporting his clients' position, and asked the jury to appraise not only his client's record but the whole educational program of the Party, as expressed in the documents introduced by the defense. The peroration was quite brief and called for a verdict that would say to the prosecution. "The American people will have no part of political frame-ups." He closed with an appeal to duty and responsibility. Mr. Crockett used a mixture of the two legal styles, with a slight predominence of the factual style. He had prepared a manuscript of his summation dealing with the testimony of three "in- former" or F.B.I. witnesses. This prepared speech greatly expanded the so-called Negro question and was constructed on the principal evidence as found in three meetings and four documents that the defense felt were central to the case against them. While his word choice was predominently factual, he made extensive use of his own ethos as a Negro and the device of relating his arguments analogically with American history. 242 He used a few abstract bias terms such as "big business" and "conscience of America" and once took refuge in Communist semantics by insisting that Marxism-Leninism was a "scientific" language. He used definition to construct several refutory dilemmas but essentially appealed to the sense of fairness of the jury and tried to place the defendants and their Party within the American political tradition. Eugene Dennis, Egg 33 In his opening speech, Mr. Dennis had chosen to speak or the Party and its program. He had persisted, over repeated warnings by the Court, in going far beyond the limits of the indictment in introducing issues in his opening. Louis McCabe of the defense staff, has reported that he advised Mr. Dennis to speak for the defendants in ‘the political sense and discuss the program of their Party. Apparently there was no problem of legality in this procedure nor in obtaining the Court's permission for Mr. Dennis to speak. In his opening, Dennis had set three tasks for the defense: 1) In regard to the government's characterization of the Party's organizational activities from 1945-48, he had promised the jury that "we will put into the record what we did do," 2) in relation to the first task, the defense would establish just what were the principles of marxism— Leninism, and 3) the defendants and their various careers in the Party would be reviewed. The first two statements proved to be a pandora's box. Mr. Dennis had argued that the defense whould be allowed to show all of their activities and writings during the indictment period and before. This had led to constant interuptions and warnings from the Court. rid 243 The 1945 Draft Resolution had been a principal source of invention for Mr. Dennis in his opening and his remarks ranged over such problems as the Chinese Civil War, the restoration of Germany and Japan, the civil war in Greece, the problems of returning veterans, the Truman Doctrine, the Marshall Plan, and the Atlantic Pact. The colloquy with the Court on the limits of relevant issues continued indecisively throughout the opening speech. He had spoken first for the defense in Opening and appeared last for the defense in the summations. Mr. Dennis began his summation without fanfare. From the lecturn in the middle of the room, he addressed the jury quite simply, "Members of the jury." He told the jury that millions of people had come to realize that this was an historic trial. This was so because it involved not just eleven Communist leaders but also "involves the political principles and the inalienable rights of an American working class party, which bases its theory and program on scientific socialism." It therefore involved issues, he argued, of freedom of speech, freedom of press, of religion and of association and therefore involved the domocratic liberties and the future of all Americans. He said that the trial was a political trial, a thought control trial. He immediately challenged the structure of the prosecution's case and the nature of the evidence. He reviewed the charges in the indictment and proceeded to characterize them: Now the prosecution has rested its miserable case primarily on point 3 and this Goebbels-like line of proof on the question of whether or not the advocacy of the forcible overthrow of the United States Government is a Marxist— Leninist principle. .It has thus rested its case, A, on a monstrous falsehood refuted by all the evidence and testimony, and B, on the untriable issue of how we de- 244 fendants understand and apply our political doctrine and theory. 333 .And a few minutes later: Members of the jury, the record, the evidence and testimony shows that our aims and the sole purpose in reconstituting the Communist Party was to enable it to become a more influential and an effective working class force in this postwar struggle to save our people from the force and violence of monopoly reaction, lynchings and an atomic war. 334 Emphasizing that the indictment charges that the Party went back to its old pre-war policies, Dennis argued that while the Party opposed the reactionary policies of the Harding, Coolidge, and Hoover governments, it never advocated the overthrow of these governments. He reviewed the Party's pre-war struggles for civil rights and various economic benefits. As to the specific organ- izational acts mentioned in the indictment, Dennis argued that none was prohibited by law and that they were activities guaranteed by the First Amendment. He reminded the jury that a second indictment was pending against the Party and drew an analogy with Nazi Germany where persecution of Communists and Jews rapidly extended to Catholics, Social Democrats, and trade unionists. He argued from this that the case was part of a political prosecution of the whole Party. Finally, he developed an apologia regarding the secrecy surrounding some of the Party's activities, assigning it to the police state atmosphere in America. At this point, which concluded Mr. Dennis' introduction, court was adjourned over a weekend, until 10:00 A.M. October 12. 333 16 Re 12328. 334 16 R. 12329. 245 Immediately on Opening on October 12, Mr. Dennis oriented the jury to his main purpose. In summing up for the Party, he would deal with "theoretical and political questions" of the case, which he assured the jury were the "64 dollar questions." He began a lengthly exposition of Marxist-Leninist principles as expressed in William Foster's deposition. He also quoted from the History of the Communist Party of the Soviet Union (Bglghevik), of which each juror had received a copy. From this material, be traced five stages of social evolution which constituted the law of inevitable proletarian revolution. ‘Referring to the testimony of Gates, Green and others, he stated that "scientifically moribund capitalism" was doomed by the historical process that Communism described. Here be quoted Mark Twain, reminding the jury that his real name was Samuel Clemens, on the greater Reign of Terror that had preceeded the revolution in France. Insisting that Marxism-Leninism was descriptive a a basic law of social change that was predictive and did not advocate violent change, he was inconsistent in arguing first that the government had confused ends and means and then secondly, a moment later, that Foley Square (i.e., the trial) was a fascist plot. Commenting on the great importance that "we Communist leaders attach to the study of American history, "Dennis then developed a long treatise on American history as a Marxist would have it. This included an analogy based on the Reconstruction era following the Civil War. The government of that day had "smashed" the slavery oligarchy state machinery. This process was offered as analogous with how Communists use the word "smash." This discourse an.American history was taken through the United Front period of 1935—1938. This was followed with an invective against the Truman administration. 246 Here he saw an America of unrestricted cartels, the Mundt-Nixon "police state" bill, and the prosecution's "Mein Kampf" blue print. He then went on to argue that the Party's 1945 Draft Resolution had predicted the 1945 depression and had put forward a constructive program for America. This discourse about American history was loosely structured as L‘ refutation of what Dennis identified as the prosecution's two "iffy" propositions. These were: 1) that we Communist leaders advocate the f forcible overthrow of the government in time of depression, and/or 2) that we allegedly do so during an imperialist war. There was no reference to the proof the government offered in regard to these propositions. He dealt almost exclusively in counter-argument as opposed to direct refutation of material offered as evidence. .Assuring the jury that "we Communists speak the blunt and honest language of the working people," be quoted Carl Schurz in 1898, "My country, right or wrong; when right, to be kept right; when wrong, to be put right." The only other signpost language in this long topical deve10pment in Dennis' summation was a constant and generalized reference to the record. He would often introduce a new argument with the expression, "What does the record show that we Communists did in regard to this principle?" In regard to the troublesome slogan, "Turn the Imperialist war into a civil war," Dennis did offer a direct refutation. It was essentially, however, a straight denial. Referring to Budenz's testimony that in 1939 he had heard Dennis say, "The imperialist war should be turned into civil war," Mr. Dennis characterized the statement as an unmitigated lie and referred to the testimony of the defense 247 witness Max Weiss and his own writings as refutation of this "base, monstrous falsity" of Budenz. He did not, however, offer any explicit statements or writings that would have refuted Budenz's testimony. He then argued that the slogan was never used as a slogan of action during World War II, "a just war which we Communists resolutely supported from beginning to end." He argued that Foster's book, Toward a Soviet America, written in the 1920's, had long ago been repudiated as immature by both Foster and the Party and asked the jury to adapt as a yardstick the adage, "By their deeds‘ye shall know them.” He insisted that the Party's guide had always been "Marxism is not a dogma, it is a guide to action." This was an effort to lay the groundwork for arguing "what we did teach and do." Thetxposition which followed included living conditions for Negroes, civil rights legislation, mass struggles for wage increases, repeal of the Taft-Hartley Act, mass mobilization against the Mundt—Nixon bill, exposure of and opposition to intervention in the internal affairs of Greece, Turkey, and China, abolition of the House UneAmerican Committee, Opposition to the Marshall Plan and the North Atlantic Pact and mass efforts to help the American people defeat the violent diplomacy of the conspirators who want to launch an atomic war. He then told the jury that because the Communist Party fought for peace, the defendants were indicted "for our beliefs and our ideas, our principles." This was the familiar political plot theory. He argued again, as the defense had done before, that they had a right to rely on the 1943 Schneiderman decision and that therefore the 248 Marxist-Leninist classics and Party principles had been put in double jeopardy. Quoting from the Schneiderman decision, he asked the jury rhetorically what had changed between 1943 and 1948. He claimed that certainly Marxism—Leninism had not. What had changed, he argued, was the political situation. He claimed that the trial was, in part, retaliation for the Communist Party's having supported Wallace and the Progressive Party in 1948. He told the jury that "the record" established no motive for the defendants' alleged intent to teach and advocate, but that it did establish the pretty clear motive "for a Democratic administration under Republican fire for alleged coddling of Communists and fellow-travelers to indict eleven Communist leaders in the campaign in the summer of 1948.235 He then went on to suggest a rather insidious analogy with the Reichstag fire "frameups" in Germany in 1933. He asked the jury, in listening to the United States Attorney, to keep in mind that the Constitution imposed on them the duty to defend the people, even, if need be, against the arbitrary actions of any bureaucratic or tyrannical Party or regime representing itself as the government of the United States. He closed by calling on the jury to reaffirm the principle of the Bill of Rights. "Whatever be your verdict, we Communist leaders face the future with confidence in our Party, our people, our country." In his closing remarks at the plenary meeting of the National Committee of the Communist Party ianew York in March, 1950, Party General Secretary Dennis offered some interesting criticism of Party 335 16 R. 12370. The text of this speech is printed at 16 R. 12326— 12373 inclusive. 249 336 defense strategy at the trial and of his own efforts. He told the National Committee that while history would record that the twelve defendants fought courageously and the Party ably defended its political line, there were certain weaknesses and errors made in the course of the trial. One category of weaknesses, he suggested, was that "while we made clear that our Party does not advocate force and violence, and showed who did--the Men of the Trusts, the reactionaries—-we did not sufficiently defend the historic, democratic right of the people, of the majority, to revolution." He also suggested here that they should have dealt a more effective blow against the "foreign agent" slander. A second shortcoming, according to Dennis's analysis, was a failure to make a more effective use of the jury challenge. This challenge, he argued, afforded the Party an opportunity to expose more clearly the "sham jury and grand jury process which is controlled by the men of Wall Street." He ominously made the judgment that "we still have certain opportunities on this score which might be used." It was not indicated whether he was re- ferring to opportunities during the appeal of their convictions or during subsequent prosecutions of Communists under the Smith and McCarran.Acts. Certainly the three months devoted to the offer of proof on the voire dire challenge was adequate for any defendant to make a thorough offer of proof. A third category of weaknesses and unclarities was "faulty or unhappy" formulations of Marxism-Leninism which occurred in Foster's 336"Criticism and Self-Criticism," closing remarks at the plenary meeting of the National Committee of the Communist Party, March, 1950, printed in Eugene Dennis, Ideas They Cannot Jail, (New York: International publishers, 1950), pp. 158-178.*Mr. Dennis' summation to the jury was also published in this volume, pp. 121—157. ....‘D u ...I. ”Jr. 250 deposition and Dennis' summation. He referred to certain criticism that had developed within the Party of the trial strategy and certain publications connected with the trial. These allegations were to the effect that the defendants had "revised" Marxism. Dennis felt obliged here to refer to the "struggle in the restrictive atmosphere of the courtroom against the efforts of the government and the court to prevent us from presenting our case." This after a nine month trial! He assured the National Committee that limitations imposed by the Court "did not make it possible for us in any of our documents or testimony to say the last word on all questions, including a number of tactical, theoretical, and important political questions that we dealt with." He apologized for lack of time to develop fully these questions but assured the Committee that while the political line developed in connection with the trial was essentially correct, every word and comma were not to be taken as final exposition of the Party's current view of Marxist theory or policy. It is seen then that Mr. Dennis in his summation took it as his task to argue and expound the Party's theoretical and political theories as a defense against the charges brought against the National board members as individuals. He wanted to put into the trial "what they gig do" as a defense against the charge of conspiracy. The difficulty of proving that one did not engage in a conspiracy was evident here. However, he was permitted to proceed here without interruption of his summation by the court and was even granted two short recesses during the speech. His invention subsequently ranged over United States history and contemporary political and social affairs. 251 His principal mode of argument was to couple Marxist definition with American historical analogy as in the case of his equating post- Civil War Reconstruction policies with the Communist doctrine of "smashing state machinery." He also made effective use of example in pointing to Communist support of the early labor movement in this country and Communist defense of Negro defendants in criminal prose— L- cutions in the 1920's and 1930's such as the Scottsboro and Herndon (38898 . } The disposition of this speech was a poorly defined topical organization structured around two prosecution contentions and two defense contentions. The governments' contentions that he replied to were: 1) that Communist doctrine calls for developing a revolution during periods of economic depression and 2) that Communist doctrine calls for developing a revolution during time of war ("turn the imperialist war into civil war"). The defense contentions that he tried to establish could be stated as: l) The Communist Party's record of political activities during the past thirty years proves that it does not advocate the overthrow of the government by force and violence, and 2) the trial was a political reprisal against the Communist Party by the Truman Administration because of the Party's opposition to administration cold—war policies and its support of the Progressive Party the year before. The style of both Mr. Dennis' opening speech and summation offers an interesting picture and several rhetorical problems. He presented himself, in turn, as a friendly and colloquial American politician well versed in history and literature, a doctrinaire Marxist arguing from the particular and apriori definitions of Marxism-Leninism, and 252 at times as an angry and harassed labor leader using language not commonly heard in judicial chambers, even in police night court. The government's case was "this miserable case," and "this Goebbels- like line of proof." The indictment was put together "in the dark of the moon." He constantly used the rhetorical device of referring to the record, "the record shows-—," but seldom referring to documents or testimony. The principal government witness, Louis Budenz, was dismissed as "the false witness." This speech can be taken as something more than a forensic summation. An important Communist official speaking‘pgghgg at a trial brought under the Smith Act in the summer of 1949 would by definition be making an effort to communicate political ideas to a mass audience. The speech was in manuscript form and delivered at an unhurried pace. It was reprinted and published under Party auspices. Yet it has been seen that there developed some intra-Party criticism of some of the interpretations of Marxism-Leninism found in the speech. Internal evidence in this speech suggests some of the problems facing a Communist speaker attempting to communicate to the larger American community from within the Communist Party structure and the two-level system of communication particular to it. His attempt to prove that Marxism-Leninism was predictive of revolution rather than advocative of revolution and his effort to suggest the many programs the Party had supported in the past apparently led him into arguments that were challenged by some Party members as "revisionism," a perennial problem among Communist dialecticians. 253 The problem of establishing ethos with an.American jury in 1949 would be significant for any Party speaker. Mr. Dennis was colloquial at times and invoked the memory of St. Paul,.Lincoln, and Mark Twain. But he was still faced with the task of communicating the strict Marxist view of America. While his opportunity to expound Marxist ideas to the American public was presumably considered a valuable one, the problem of pleading his case here while avoiding "revisionism" might have been considerable. Many arguments were based on apriori Marxist—Leninist definitions. The Party was a working-class party; ergo, classes existed which were mutually antagonistic. A capitalist society has a police—state atmosphere; hence, secrecy is justified on the part of a "working-class" party. There were certainly simpler ways, with the material at hand, to argue that Marxism-Leninism was predictive of revolution rather than advocative. But he chose to do this by explaining the five stages of social evolution found in Marxist theory, which included the argument of inevitable proletarian revolution. He was internally inconsistent in ascribing motivations to the government. Arguing that the government had relied on false witnesses and had misinterpreted Marxism—Leninism, he also argued that the trial was merely a political reprisal by the Democratic administration. He was also inconsistent in arguing that "we Communists speak the blunt and honest language of the working people" while elsewhere sympathizing with the jury in that Marxism-Leninism was a scientific language too complicated for them to understand. 254 For the United States: Francis.X. McGohey United States Attorney McGohey began his summation by complimenting the jury on their patience. He charged the jury with the solemn duty of safeguarding the country and its institutions against destruction from within as well as from attack from without. He assured the jury that the indictment does charge a crime. He announced his purpose in summation: "I shall review the evidence." His summation was structured on the paragraphs of the indictment as was his opening speech. Before proceeding to the first paragraph of the indictment, he assured the jury of the fairness of considering evidence of the activities of the defendants prior to April, 1945, if they found that a conspiracy had been formed. He asked the jury to consider the characters of the six defendants who had testified during the trial, reminding the jurors that each of these defendants had been "longwinded and marvelous" on direct examination but had "shut up like clams" on cross—examination. He also asked the jury to give special consideration to the word "reconstituted," as used in Foster's deposition. He argued that it meant that the Party had returned to the principles of the pre—l944 Party. He also assured the jury that outside issues "have no place whatever in this case.‘337 Within each unit of his summation, representing the paragraphs of the indictment, Mr. McGohey used a narrative style and a time pattern of development. The first paragraph charged the formation of the conspiracy and named each defendant as a party to the conspiracy. 33710 R. 12380. The test of this speech is found at 16 R. 12374-12452 inclusive. 255 In supporting this paragraph, McGohey directly answered Mr. Dennis on the issue of whether the Russian revolution was used as a model. He quoted the defendant John Gates writing in a study outline, government exhibit RRRR, "The History of the CPSU contains the essentials of Marxist—~Leninist ideology." He quoted several of the defendants' statements prior to 1935 and reminded the jury that three of the defendants, Foster, Green, and Stachel, were present at the 1935 Congress (The Seventh, or "United Front" Congress of the Communist International). He deprecated Winter's testimony that he had not met or spoken to any other Americans at that Congress. In a long narrative development, be traced the Party through the Communist Political Association period of 1944. Party policies had changed abruptly after the 1941 attack on Russia by Hitler. Browder's report in 1944 had been supported by Dennis and the other defendants. The only rebel, William Foster, had not been allowed to express his views openly. The Communist Political Association had adopted American organisational nomemclature, branches becoming clubs, etc. Paragraph two dealt with the 1945 Draft Resolution. Here McGohey reviewed the facts surrounding the Starobin letter, the 1944 Foster letter which had been dealt with extensively in the Duclos article. He reminded the jury that the Party had "jumped" when the Duclos article had appeared. He reviewed testimony that the Party had been told, before the 1945 convention, that the Draft Resolution would govern the mass work of the Party in the future. Paragraph three referred to the 1945 National Committee meeting. Another "enabling count" of the indictment, this paragraph charged that the defendants met to amend and adopt the Draft Resolution. He reviewed 256 the testimony of Younglove of the St. Louis school, where Betty Gannet and Elizabeth Gurley Flynn had spoken, and of Frank Meyer of the Jefferson School in New York, where the defendant Stachel had spoken. The theme of these talks had been the same, "Browder was wrong-- Duclos was right." Members of the witness Calomiris' club had been expelled for disagreeing. A letter of protest written by the witness Meyer had never been published. Paragraph four dealt with the 1945 National Convention, whichthad been called "for the purpose of considering and acting upon said resolution as amended." Here the evidence was rather complicated. For example, the government's case contended that the term "coalition" used in Dimitroff's speech at the convention was simply the old "united front" tactic. Paragraph five charged that the defendants conspired to "induce the delegates to dissolve the Communist Political Association. McGohey argued that Foster had settled this in his deposition, where he had testified that "a thorough discussion had preceded the convention for many weeks in the lower organs of the Party." "Yes", McGohey told the jury, "after a discussion period in which the members were encouraged to discuss how and why they had made mistakes, not whether they had made them, the delegates accepted Foster's keynote speech and the Party went back to the old line." He then went on to review other evidence of the Party's "Democratic Centralism." Paragraph six charged that the defendants conspired to bring about the organization of the Communist Party of the United States as a society, group, and assembly of persons to teach and advocate the overthrow and destruction of the Government of the United States by force and violence, and would cause said Convention to adOpt a 257 Constitution basing said Party upon the principles of Marxism-Leninism. Here be reviewed extensive testimony and documentary evidence. Several government witnesses had been at the convention. Yolanda Hall had testified that the defendant Williamson had been chairman of the Resolutions Committee, had presented them to the delegates, who had dutifully adopted them as the new Constitution. The defendant Winter had testified that he, with Dennis and Green, had written the Preamble to the new constitution. He put in Dennis' admission at the convention that an innocent sounding statement in the preamble calling for the common ownership and operation of the national economy under a government of the people led by the working class actually meant that the Party was committed to the proletarian dictatorship. Paragraph seven charged that the defendants would become members, and would be elected as officers. He simply reminded the jury here that they had all gotten officerships and that Foster and Dennis were the secretariat. He reminded the jury that the defendants admitted that they ran the Party. Paragraph eight referred to the organization of clubs and district and state units. Under Henry Winston, the new Organizational Secretary, a new Party building program had been initiated. McGohey reviewed several exhibits showing the Party's recruiting had concentrated on plants and industry and on youth. He reminded the jury that the defense had admitted this. Paragraph nine referred to plans to publish and circulate books, articles, magazines and newspapers advocating the principles of Marxism- Leninism. Here again the proof seemed to be complete. Evidence con— cerning the publication of the Daily Worker and the journal Political Affairs 258 was reviewed. Much was made of the fact that defendant Gates and other defense witnesses had denied that the Daily Worker was the official organ of the Party. Defendant Winston had finally said "Yes" and "No" on cross-examination. McGohey reviewed the testimony of Louis Budenz to the effect that when he had served as editor of the Daily Worker his work had been subject to the supervision of Foster, Dennis, and Stachel, who had been in charge of education and literature in the Party. He reviewed reports of the Party's National Literature Department showing increased sales of the Lenin Home Library and other works published by the Party's two publishing houses, New Century and International Publishers. He argued that there had been a big "going back to the classics following Browder's ouster." Paragraph ten dealt with schools and classes and constituted the heart of the government's case. McGohey first reviewed classes held at the individual club level, referring to the testimony of the witness Hidalgo regarding the Tom Paine Club in 1947. He then recalled for the jury that higher classes were closed affairs,where Lenin's State anggRevolution was studied. Students had been instructed not to use their regular names or full names. He reminded the jury that George Siskind, a high education official of the Party, had not been produced as a defense witness. Following an adjournment until the next morning, October 13, Mr. McGohey began reviewing the important teaching outlines, government exhibit 51 and defense exhibit 9 x Z. Exhibit 51, entitled "Outline of Marxist Fundamentals for Classes and Self Study," was credited with being the "most damaging single item of evidence." He recalled the 259 testimony of the witness Herbert Philbrick, who had described some of the class discussions conducted under the teaching outlines in evidence. McGohey abruptly asked Mr. Sacher of the defense for a copy of defense exhibit 9 x Z and showed the jury that it was essentially the same outline as the government exhibit. To the in— vestigator, the lessons seemed to be damming. Lesson 3 of exhibit 9 x Z concgrned The Class Struggle and suggested "the shattering of the former :‘ state power and its replacement by a new and really deomocratic state. Lesson 4 concerned Foundations of Leninism by Stalin and reported ex- plicitly that Stalin laid down the doctrine that the United States was no exception to the general law of violent Communist revolution. The testimony of the witness Berry, a long-time Party member, had been to the effect that there was noadifference between the pre—l944 Party and the post 1945 Party. Having completed a review of the evidence, the government presented in regard to each count in the indictment, McGohey began at this point a concluding section of his speech which he devoted to rebuttal, using the "residue" technique. He began by suggesting to the jury that he wanted to refer to "a few other matters." In referring to the defense summations, he charged that there had been absolutely no real discussion or explanation of the irrefutable evidence. Instead, he had heard bitter appeals to passion and prejudice. He pointed out the inconsistency of defense pleading in their begging the jury to decide the case on the evidence alone and on the other hand asking them to decide the case on con— siderations not based on the evidence heard in the courtroom. This, he charged, was consistent with other conduct of the defense and their counsel. 260 He offered the jury the example of the picket lines in front of the courthouse, which were led by a defense witness, Howard Johnson, of the New York State Committee. As an example of what the defense considered evidence, McGohey reminded the jury that the six men (defense counsel) who had argued on behalf of the defendants had uttered not a single word about the important teaching outlines. In referring to Louis McCabe's summation, McGohey reminded the jury of McCabe's statement that the defense had offered to let the F.B.I. reports go to the jury without the defense seeing them. McGohey announced that he had checked on this, and no such offer was made. Referring to the much quoted Schneiderman case, he reminded the jury that there had been no finding in that case regarding the question of whether the Communist Party teaches and advocates force and violence. It had not been an issue in that case. In regard to the books on trial argument, he offered an analogy concerning burglary tools. "We are concerned with the Egg of these books." He reviewed the credibility of defendants as witnesses, reminding the jury of false names, refusal to answer questions, and refusal t0’name associates. He characterized the defense position as one of taking three positions; 1) we didn't do it, 2) hell, if we did do it we had a right under the First Amendment, and 3) if we did it and didn't have a right to do it under the First Amendment, well, we couldn't accomplish the overthrow of the Government by books anyhow and so it doesn't make any difference and we should not be punished for it. He dismissed the first two and discussed the third. Quoting from the Program of the Communist International, he argued that the 261 defendants fit Lenin's description of professional revolutionaries and that their intent was to succeed. In closing he struck a note of fairness. "Ladies and Gentlemen, my work is finished." "Don't hesitate to acquit if you find the law has not been violated." If, on the other hand, he told them, they found the defendants had violated the law, they should not hesitate, because of sympathy or any other reason, to render a verdict of guilty as a clear warning to others that a crime of this character may not be committed with impunity. "The people of the United States are entitled to be assured of that." Mr. McGohey's speech followed the dictates of legal pleading in that it was structured on the indictment, was addressed in the factual style, and was spoken with a calm and dignity which presented an effective contrast to much of the defense summation. The other contrast which the speech made clear was the extent to which the government's case relied on the Party literature, the thousands of books, pamphlets, and articles, which reposed in filing cabinets there in the courtroom and had a physical presence of their own. In contrast, the defense dealt with this literature not at all in their summations. In charging the jury, Judge Medina told them that if they found the defendants guilty under the law "as I shall give it to you," that he found as a matter of law that "there is sufficient danger of a substantive evil that the Congress has a right to prevent to justify the application of the statute under the First Amendment of the Constitution." This finding was sharply contended subsequently and later on appeal. The jury retired at 3:55 P.M. October 13th. Court docket entries show that they went to dinner at 5:41, returned at 7:00 P.M., and were taken to 262 a hotel at 10:21, at their request. The jury returned to the Courthouse at 9:29 A.M. on October 14th and returned their verdict at 11:28 A.M. The defendants, and each of them individually were found guilty. The jury was polled individually. When the jury was discharged, the de- fendants were remanded, and the defense attorneys and Mr. Dennis were immediately adjudged guilty of contempt of court for their conduct during the case. On October 2lst, the defendants were sentenced to five years imprisonment and fined $10,000 each, except for Robert Thompson, who received a sentence of three years. Motions on behalf of each defendant for bail pending appeal were argued and denied. 263 CHAPTER VII THE APPELLATE DECISIONS The case of United States v. Dennis et al. was argued in the United States Court of Appeals on June 21, 22, and 23, 1950 and decided August 1, 1950. A writ of certiorari to the Supreme Court was granted October 23, 1950, and the case was argued before the Supreme Court December 4, 1950 and was decided June 4, 1951. Chief Judge Learned Hand wrote for the Court of Appeals. The first issue he addressed was whether the evidence was sufficient to support the jury's verdict. "There was abundant evidence, if believed, to show that they were all engaged in an extensive concerted action to teach what indeed they do not disavow-~the doctrines of Marxism—Leninism." He found that the "upshot" of the doctrines, as found in the'many pamphlets put in evidence at the trial, was: 1) that capitalism inescapably rests upon, and must perpetuate, the oppression of those who do not own the means of production; 2) that to it in time there must and will succeed a "classless" society, which will make unnecessary most of the paraphernalia of government; and 3) that there must be an intermediate and transitional period of the "dictatorship of the proletariat," which can be established only by the violent over- 338 throw of any existing government, if that be capitalistic. 338 183 F. 2d 201 at 206. 264 He then found against the principal contention of the defense: It is unnecessary to quote in detail the many passages in the pamphlets and books, published and disseminated by the defendants, which flatly contradict their declarations that they mean to confine the use of 'force and violence' to the protection of political power, once lawfully obtained. The prosecution proved this part of its case quite independently of the testimony of its witnesses, though the jury might have relied upon that had it stood alone. 339 The problem Judge Hand saw was represented when an utterance is at once persuasion and instigation. What limits, if any, does the advocacy of illegal means impose upon the privilege which the aims and purposes of the utterer would otherwise enjoy? iReviewing several previous free speech decisions, Judge Hand held that the phrase, "Clear and present danger," is not a slogan or a shibboleth to be applied as though it carried its own meaning; but that it involves in every case a comparison between interests which are to be appraised qualitatively. In each case, he held, the courts must ask whether the gravity of the "evil," discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. He thus upheld trial Judge Medina's charge to the jury, which he reviewed, and which had held, as a matter of law, that if the jury found a violation of the statute as interpreted by him, then there is "sufficient danger of a substantive evil . . . to justify the application of the statute under the First Ammendment." Judge Hand also reformulated the "clear and present danger" doctrine here. The new test was to be "clear and probable danger." 339 Ibid. 265 He argued that "we have purposely substituted 'improbability' for 'remoteness,' because that must be the right interpretation." In the case at bar, he wrote prophetically, the defense seems to have "kicked the beam." Paraphrasing the Jeffersonian rule, he suggested that one may reasonably think it wiser in the long run to let an unhappy, bitter outcast vent his venom before any crowds he can muster and in any terms that he wishes, be they as ferocious as he will, that one might trust that his (the speaker's) patent impotence will be a foil to anything he may propose. However, he wrote, "Here we are faced with something very different." The American Communist Party, of which he found the defendants to be the controlling spirits, was held to be a highly articulated, well contrived, far-spread organization, numbering thousands of adherents, rigidly and ruthlessly disciplined, many of whom were infused with a passionate Utopian faith that is to redeem mankind. It had its Founder, its apostles, its sacred texts, perhaps even its martyrs. He found that the Party sought converts far and wide by an extensive system of schooling, demanding of all an inflecible doctrinal orthodoxy. The violent capture of all existing governments was held to be an article of the Communist creed, which adjured the possibility of success by lawful means. That article, he wrote, was a common place among initiates and was a "part of the homiletics for novitiafies," although, so far as conveniently it could be, it was covered by an innocent terminology, designed to prevent its disclosure. 266 Judge Hand then set down a position for the United States: Your democracy, like any other, must meet that faith and that creed on the merits, or it will perish; and we must not flinch at the challenge. Nevertheless, we may insist that the rules of the game be observed, and the rules confine the conflict to weapons drawn from the universe of discourse. 340 He argued that revolutions are often "right," but that a "right of revolution" was a contradiction in terms, for a society which acknowledged it could not stop at tolerating conspiracies to over- throw it, but must include their execution. The question became, than: How long must a government, having discovered such a conspiracy, wait? "When does the conspiracy become a present, danger? He hastily rejected the defense position of constitutional privilege. However, he said that the court need not rely on the position that even so thoroughly planned and so extensive a confederation would be a "present danger" at all times and in all circumstances; the question was: How imminent-~that is, how probable of execution--was it in the summer of 1948, when the indictment was found? He then reviewed the rise of Communism in Europe; "no such movement in Europe of East to West had arisen since Islam." He pointed out that many other governments had fallen in the past thirty years to this type of conspiracy. "We hold that it is a danger, "clear and present." He upheld the constitutionality of the Smith Act and Judge Medina's charge to the jury under it. The remainder of this long decision was devoted to a review of questions raised on appeal concerning the challenge of the array of the trial jury panel and on the conduct of the trial. 340 we, at p. 2130 267 The United States Supreme Court upheld the convictions by a vote of six to two, Justices Black and Douglas dissenting. The Majority Opinion was written by Chief Justice Vinson, who adopted Judge Hand's reformulation of the "clear and present danger" rule. He wrote that the "clear and present danger" test devised under less serious circumstances was not to encase the government in a "semantic strait jacket." Here too, Justice Vinson also saw a new type of danger: The situation with which Justice's Holmes and Brandeis were concerned in Gitlow was comparatively an isolated event, bearing little relation in their minds to any sub- stantial threat to the safety of the community. . . They were not confronted with any situation comparable to the instant one . . . the development of an apparatus designed and dedicated to the overthrow of the Government, in the context of world crisis after crisis. 341 ‘In upholding Judge Hand's reformulation, Chief Justice Vinson, joined by Justices Reed and Burton, wrote with an air of finality: Chief Judge Learned Hand, writing for the majority below, interpreted the phrase "clear and present danger" as follows: ”In each case the courts must ask whether the gravity of the 'evil', discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” We adOpt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significance. More we cannot expect from words. 342 Justice Frankfurter, in a concurring opinion, engaged in con- siderable soul searching. However, following a detailed review of free speech decisions he concluded that "if the Smith Act is justified 341 Dennis v. United States, 341 U. s. 494 (1951). 342 Ibid., p. 510. 268 at all, it is justified precisely because it may serve to prohibit the type of conspiracy for which these defendants were convicted." Ultimately, he concluded, judges must sit down and weigh the interests that conflict. Commenting that not every type of speech occupies the same position on the scale of values, he noted that the defendants had been convicted of conspiring to organize a party of persons who advocate the overthrow of the Government by force and violence. The jury had found, under the trial judge's instructions, that the object of the conspiracy was advocacy as "a rule or principle of action," "by language reasonably and ordinarily calculated to incite persons to such action," and with the intent to cause the overthrow "as speedily as circumstances would permit." "On any scale of values which we have hitherto recognized, speech of this sort ranks low." He then postulated a legal definition of "advocacy:" Throughout our decisions there has recurred a distinction between the statement of an idea which may prompt its hearers to take unlawful action, and advocacy that such action be taken. The distinction has its root in the conception of the common law that a person who procures another to do an act is responsible for that act as though he had done it himself. 343 However, he pointed out, there was no divining rod by which "we may locate 'advocacy.’ Exposition of ideas readily merges into advocacy." He recalled that Justice Holmes, in dissenting from the Gitlow decision, had written, "Every idea is an incitement." 269 He concluded finally that such a distinction "could be used unreasonably by those in power against hostile or unorthodox views," but that that must not "negate the fact that it may be used reasonably against an organization wielding the power of the centrally controlled inter- national Communist movement." He was saddened by the conclusion that the court could not punish defendants for their advocacy "without adding to the risks run by loyal citizens who honestly believe in some of the reforms these defendants advance." "It is a sobering fact that in sustaining the conviction before us we can hardly escape restriction on the inter- change of ideas." His decision to concur also constituted an appeal to the nation and its courts to retain a liberal spirit. Justice Jackson, in concurring, argued that the Smith Act repeated a pattern in legislation devised to combat the wave of anarchistic terrorism that plagued the country around the turn of the century. He held that such legislation legs at least two generations behind Communist Party techniques. "Unless we are to hold our Government captive in a judge-made verbal trap, we must approach the problem of a well—organised, nation-wide conspiracy realistically." Jackson would not apply the "clear and present danger" concept to this case. He argued that it imposed too much guesswork on the judges. Also, it would have the effect of causing the government to stay its hand during the period of Communist organization and preparation, and move only after imminent action was manifest, when it would, of course, be too late. 270 He then developed an apologia and defense of the rationale of applying the laws of conspiracy. It was evident here that he was refuting arguments found in the dissenting opinions. He admitted the difficulty in determining the mode of address: Of course, it is not always easy to distinguish teaching or advocacy in the sense of incitement from teaching or advocacy in the sense of exposition or explanation. It is a question of fact in each case. 344 Reviewing the nature of Communist Party organization and the fact that "communication is the essence of every conspiracy," Jackson argued that the law of conspiracy had been the chief means at the government's disposal to deal with the growing problems created by such organizations. It was, he admitted, an "awkward and inept remedy," but "there is no constitutional right to 'gang up' on the government." In his dissenting opinion, Justice Black saw a "fundamental difference in constitutional approach." He held that the conspiracy clause of the Smith Act was a "virulent form of prior cencorship of speech and press, which I believe the First Amendment forbids." He argued that the law also abrogates the "clear and present danger" test. He felt that judges attacking these problems on their own notions of mere "reasonableness" watered down the First Amendment so that it amounted to little more than an admonition to Congress. If the Amendment were to be so construed, it would protect only those "safe" or orthodox views which rarely need its protection. He also objected to the majority's sanctioning of the determination of a crucial issue of fact (the necessary degree of evil or danger) by the judge rather than the jury. 344 Ibid., p. 572. 271 Justice Douglas, in a separate dissent, argued that the case contained no evidence of teaching overt acts, such as sabotage, assassination, or street warfare. But the arguments of the majority, he complained, seem to imply "much seditious conduct." He argued that indoctrination in the techniques of terror to destroy the government would be indictable under several statutes. "But the teaching which is condemned here is of a different character." Pointing out that the conviction was essentially for teaching Marxism- Leninism— and that essentially from four books (Foundations of Leninism, The Communist Manifesto,_State and Rdvolution, and the History of the Communist Partygof the Sovietggigg) - he argued that the books were not illegal hence, the conviction turns on the question of intent. He then concluded that when the Courts try to apply the principle of intent to speech cases, they take us back to the old English concept of constructive treason. "Men were punished not for raising a hand against the king but for thinking murderous thoughts about him." Emphasizing the importance of full and free discussion as the foundation of our political system, he admitted that "speech innocuous one year may at another time fan such destructive flames that it must be halted in the interests of the safety of the Republic." That, he argued, was the meaning of the "clear and present danger" test. He relied on Justice Brandeis' position in'Whitney vI Californiaé "If there be time to expose thrpugh discussion the falsehood and fallacies, to avert the devil by the process of education, the remedy 345 to be applied is more speech, not enforced silence." 345Ibid., p. 587. 272 Justice Douglas also argued that the "sufficient evil" question should have gone to the jury. Basically, he had found no evidence of a clear and present danger. He believed that the majority's view was not responsive to the issue in the case. "We might as well say that the speech of petitioners is outlawed because Soviet Russia and her Red Army are a threat to world peace." Communism on the world scene might be a factor, he admitted, but the primary consideration is the strength and tactical position of petitioners and their converts in this country, and "on that there is no evidence in the record. He took judicial notice of the Party's relative strength and abilities as he saw them. He held that as a political party they are of little consequence. They had never made a respectable or serious showing in any election. "Communism had been so thoroughly exposed in this country that it has been crippled as a political force. Free speech has destroyed it as an effective political party.” He felt assured that those Communists who had infiltrated American institutions were known to the F.B.I. and would be picked up over- night in case of war. These, he said, would be his conclusions "if we are to act on judicial notice," (i.e., recognize all the facts of history). Holding that "the political censor has no place in our public debates," be quoted Vishinsky writing in The Law of the Sexiet State: "In our state, naturally there can be no place for freedom of speech, press, and so on for the foes of socialism." "Our concern, "he concluded, "should be that we accept no such standard for the United States.” 273 CHAPTER VIII CONCLUSIONS In summing up the rhetorical significance of United States v. Dennis et al., an attempt will be made to suggest answers to the four questions stated in the introduction to this study. It will be recalled from Chapter One that previous to the Dennis case, the orator's freedom had been limited by the Schenck rule, which set down that his words were punishable only if they were found to be of such a nature and are heard in such circumstances as to create a clear and present danger of causing successful interference with the war and security powers of Congress. As amended by the Frohwerk rule, the Schenck rule would require the orator to establish in court exactly what was said and done, and must further establish that this, when connected with the surrounding circumstances, does not fall within the terms of the statute under which the indictment was brought as that statute is properly construed in the light of the First Amendment. The Abrams rule suggested that the orator's freedom should be limited only by the emergency that makes it immediately dangerous to leave the correction of evil counsels to time. Similarly, the Gitlow rule, expressed by a majority of the Supreme Court in Herndon v. Lowr , established the principle that for the orator's words to be subjected to a "remote bad—tendency" test rather than the Schenck rule denies him due process of law. The Near rule had forbidden "previous restraint" of the publication of ideas, and the De Jonge rule had set down that peaceable assembly for lawful discussion cannot be made a crime. 274 It was seen in Chapter Two that the Communist Party of the United States would indeed seem to be an organization carefully devised "to carry on a one—way traffic of ideas." A four-level communication model to represent the rhetorical activities of the Party was suggested. The first, or base level represented the secret "inner—Party" dialoaue suggested by the Almond hypothesis?46 The second level would be that of the Party schools and other orientation activities. The third level represented public "agitation" activity, and the fourth level propaganda activity. Within this context, defendants were tried and convicted for conspiring with each other and with "divers other persons to the grand jury unknown" to teach and to advocate the overthrow of government in the United States. Question One: What arguments and evidence did the government put forward in maintaining the contentions in the indictment? The government's case was essentially a narrative of events covering the activities of the several defendants from 1944 to 1948. The allegations set out in the several counts of the indictment are explicit and, indeed, as physical events, were not denied by the defense. The Party in its 1944 convention had converted itself to the Communist Political Association and elected Earl Browder President. At the 1945 convention, Browder and his policies were repudiated, and the Communist Party was reformed. The defendants were elected officers of the Party. From June, 1945 until July, 1948, the period covered in the indictment, the defendants were charged with adopting a draft resolution, calling a meeting of 346 See p. 66, supra. 275 the National Committee to adopt the resolution, and calling a special National Convention to act on the resolution, dissolving the Communist Political Association, and bringing about the organization of the Communist Party of the United States with a constitution based on the principles of Marxism — Leninism. The defendants were further charged with assuming leadership of said Party, of organizing clubs and District and State units, of recruiting members, of publishing books, articles, magazines, and newspapers advocating the principles of Marxism-Leninism, and of conducting schools and classes in which Marxism—Leninism was taught. The principal issue was the intent of the defendants. The government charged that the intent was to teach and advocate overthrow of the government as a necessary principle of Marxism-Leninism. The reformulation of the Communist Party then constituted a conspiracy toward that end. The government produced thirteen witnesses and a great deal of Marxist—Leninist literature. The government relied heavily on its principal witness, Louis Budenz, a former Party official and intellectual, to prove the facts behind the 1945 transition and the Communist meaning of the basic Marxist-Leninist literature. It relied on the seven witnesses who attended the Party classes and schools during the 1945-1948 period to prove that force and violence had in fact been taught as a duty and necessity. Among the hundreds of documents in the case, the most telling were teaching and study outlines from these schools and classes. 276 Question Two: What arguments and evidence did the defense put forward in maintaining their position? The defense did not deny that the defendants acted in concert toward their common objectives during this period. They denied only the charge of intent to teach and advocate force and violence. Unable to deny Leninist doctrine (indeed, they did not really try), they took the position that beginning in 1935, the Party adopted the tactic of participating with other political groups in a united front against fascism. This program was offered as proof that the defendants and the Communist Party contemplated acquiring political power peacefully through joint action with other groups. The other basic argument advanced by the defense was that their many other activities in the political field would prove that they had not advocated force and violence. They, therefore, constantly pressed for permission to get to the jury masses of documentation and extensive oral testimony of the activities of their Party on behalf of many minority groups and reform programs. The defense produced thirty-five witnesses during a four month period, including six of the defendants. However, eighteen of these witnesses, including five of the six witnesses who testified, had improperly (in the judgment of the court) declined to anser questions asked of them by the court or the cross-examiner. This coupled with the arrogance and disrespect toward the court displayed by defense counsel produced a credibility problem for the defense. Essentially, the defense took the position that the trail was a political prosecution of their Party and that everything that the defendants had said and done during the period of the alleged conspiracy should be admissible to show their understanding of 277 Marxism-Leninism and its application in this country. Even after a four— month defense, and many concessions by the trial judge, the defense still complained bitterly in their brief to the Court of Appeals as to the material which Judge Medina had excluded.347 The rhetorical style of the defense was constantly featured by the class antagonisms and invective of their faith. Their pleading was phrased often in an emotive style peculiar to Communist polemics. The picket lines around the courthouse and the noisy group of sympathizers in almost constant attendance in the crowded courtroom probably mitigated I against their stance as typical and dedicated, and now persecuted, politicians. Question Three: What was the rhetorical nature of the "conspiracy to teach and advocate" which the trial jury found here and which is now prohibited? It can be suggested here that the trial jury, and Chief Judge Learned Hand of the Court of Appeals in upholding them, found a criminal conspiracy of a new type. This was a "rhetorical conspiracy," a.conspiracy to carry on a ”one—way traffic in ideas." Rhetorical features of the conspiracy included the use of Aesopian language and the use of the sterile "free discussion” periods testified to by Mr. Budenz and Mr. Philbrick. But the principal feature of the conspiracy was the organization of the Party in a monolithic structure and the degree of discipline that was inherent in it. Judge Hand found the Party to be a "highly articulated, well contrived, far spread organization, numbering thousands of adherents, rigidly and ruthlessly disciplined." He found an extensive system of schooling, demanding of all an inflexible doctrinal orthodoxy. 347 See 183 Fed. 2d 201 at 232-233 for Judge Hand's comments on this Complaint. 278 He found that the violent capture of all existing governments was an article of the Communist creed, which abjured the possibility of success by lawful means. This, of course, was the principal internal question of the case, 143,, whether Marxism—Leninism "means" overthrow by force and violence. This article of faith, he found, was a common—place among initiates and a part of the "homiletics for novitiates," although it was covered by an innocent terminology, designed to prevent its disclosure. He thus substantially found the Almond hypothesis concerning Communist dialectics and the multi— level communication model postulated in Chapter Two. Justice Vinson, writing for the majority on the Supreme Court, also found the monolithic structure of the Party to be the principal feature of the rhetorical conspiracy. He found an "apparatus designed and dedicated to the overthrow of the Government, in the context of world crisis after crisis." Justice Frankfurter justified the Smith Act solely because "it may serve to prohibit the type of conspiracy for which these defendants were convicted." He pointed to the fact that the jury had found, under Judge Medina's instructions, that the defendants were guilty of conspiring to advocate overthrow "as a rule or principle of action," and "by language reasonably and ordinarily calculated to incite persons to such action as speedily as circumstances would permit.” Justice Jackson found that controlling legislation in the United States had fallen at least two generations behind Communist Party techniques, again suggesting that the rigid organization and "one-way" rhetorical practices of the Party posed a new kind of political threat. The problem was a "well—organized, nation—wide 279 conspiracy” which must be approached realistically. Seeing that the ”clear and present danger” test would cause the government to stay its hand, he rejected it and relied on the conspiracy approach exclusively. Justice Black, in dissenting, did not deny the findings of the lower courts and the majority opinion, but argued only that the remedy was too severe and weakened the First Amendment. Agreeing with Justice Frankfurter that free discussion would here- after be limited, he was swayed by this. Justice Douglas greatly feared the practice of applying the principle of intent to speech cases, arguing that it would lead to thought control. While he admitted Judge Hand's arguments concerning Communism on the world scene, he believed that the primary consideration should be the strength and tactical position of the Party in this country, and with this he was unimpressed. Free speech had destroyed them, he argued. Question Four: What rheterical criteria did the appellate courts appear to use in upholding this conviction? Certainly these opinions reflect the fact that the jurists writing here were concerned with several problems of interest to the rhetorician. One was the conviction-persuasion duality. Another would be the mood of the audience. Judge Hand formulated his "clear and probable danger" test to meet the problem presented when an utterance may be at once both ”persuasion and instigation." He wrote that the United States must meet the challenge of the Communist creed on its merits, but that we must insist that the rules of the game be observed, and the rules "confine the conflict to weapons 280 drawn from the universe of discourse." It could be inferred here that the rules be referred to were those of free and rational discussion and debate. Walter Lippmann has eXpressed the rule perhaps most ably: The limits of dissent are not too difficult to fix when we are dealing with avowedly revolutionary parties like the communists and the fascists. The borderline between sedition and radical reform is between the denial and the acceptance of the sovereign principle of the public philosophy: that we live in a rational order in which by sincere inquiry and rational debate we can distinguish the true and the false, the right and the wrong. The counter—revolutionists, who suppress freedom in order to propagate the official doctrine, reject the procedure by which in the free society official policy is determined. 348 Judge Hand was also concerned with the nature of the audience. He took judicial notice of the rise of Communism in Europe and the fact that other governments had fallen to this type of conspiracy.. The majority on the Supreme Court did little but concur with Judge Hand's analysis. Justice Frankfurter was also concerned with the conviction- persuasion problem. He suggested that the common law of agency (a person who procures another to do an act is reasonsible for that act as though he had done it himself) had always structured a distinction between the statement of an idea which may prompt its hearers to take unlawful action, and advocacy that such action be taken. However, he saw no absolute test, no "divining rod," for advocacy but argued that the distinction must still be applied, though reasonably, against an organization "wielding the power of the 348 Lippmann, Walter, Essays in the Public Philosophy, (Boston: Little, Brown and Co., 1955), p. 102. 281 centrally controlled international communist movement." He was saddened, however, by his duty. "It is a sobering fact that in sustaining the conviction before us we can hardly escape restriction on the interchange of ideas." Justice Jackson joined the others in concern for the conviction— persuasion distinction. He admitted the difficulty of distinguishing advocacy in the sense of incitement from advocacy in the sense of exposition or explanation. He held that it was a question of fact in each case. In dissenting, Justices Black and Douglas, both argued that the requisite danger in any rhetorical situation was a question of fact for the jury rather than a question of law for the judge to determine. Justice Douglas saw no danger in the Communist Party and seemed to place absolute confidence in the corrective powers of the public forum. It can be seen then that the Dennis decision became somewhat of 349 a precedent. Happily, it was a precedent which has been significantly 350 softened by succeeding decisions in more confident times. When Stalin ordered the American Party, in 1945, to repudiate Browderism and return to Leninist Doctrine, including the Leninist rhetorical practices described in this study, the clash between the Party and the United States Government, acting under the provisions of the Smith Act, was probably inevitable. When the defendants were brought to 349 Vanderpool, William Sherman,"The Rhetorical Principles Enunciated in Supreme Court Decisions Affecting Free Speech," Unpublished Ph.D. Dissertation,’ Louisiana State University, 1953, p. 43. 350 See Pennsylvania v. Nelson, 350 U. S. 497 (1956) and Yates v. United States, 354 U.S. 298 (1957). 282 trial, it was their rhetorical and organizational practices, essentially those suggested in Lenin's State and Revolution, which were at issue. The findings of the courts were that the rhetorical practices of the Party were outside of the public philosophy, the great Western traditions of free inquiry, discussion, and advocacy. Thus the defendants found themselves in an untenable position, obliging them to try to maintain the fiction of being "within the tradition" and at the same time avoiding the Communist error of revisionism. The courts further found that the rigid discipline inherent in this system made it a clear and probable danger. One could reflect on the significance of such a decision against the ten thousand party speakers trained by the National Socialist Party in Germany in the 1930's. The Dennis decision removed rhetorical conspiracies to sedition from the Western tradition of public address and from the protection of the First Amendment. It did not significantly limit the freedom of the orator who operates within the tradition, but what judicial restriction was enunciated here was the result of the Communist Party's trying to Operate the Marxist—Leninist system of dialectic and rhetoric within the American context. The student of public address might well reflect on the significance and potential power the courts saw in a corps or cadre of trained orators subject to rigid discipline. RHETORICAL PRINCIPLE EXPRESSED: The orator will be punished if he conspires with other orators to organize a society for the purpose and with the awvowed intent to, teach and advocate a seditious doctrine, thereby creating a clear and probable danger of attempted insurrection. 283 Selected Bibliography Public Documents U. S. House of Representatives. Report on the Communipt Party of the United States as apgAdvocpteigf Overthrow of Goverpment by Force and Violence. Report No. 1920, 80th Cong., 2nd Sess., May 10, 1948. Books Almond, Gabriel A., The A sale of Communism. Princeton: Princeton University Press, 1954. Barck, Oscar T., and Blake, Nelson M. Since $900, A History of the United States in Our Times. 3rd ed. New York: Macmillan Co., 1959. Budenz, Louis F. Men Without Faces: The Communist Conspiracy in the U,S,A. New York: Harper and Co., 1950. . The Techniques of Communism. Chicago: Henry Regnery Co., 1954. Chafee, Zechariah, Jr. Free Speech in the United States. Cambridge: Harvard University Press, 1954. Dennis, Eugene. Ideas They Cannot Jail. New York: International Publishers, 1950. Draper, Theodore. The Roots of American Communism, New York: The Viking Press, 1957. . Amerigan Communism and Soviet Russia. New York: The Viking Press, 1960. Foster, William Z. In Defense of the Communist Party and the Indicted Leaders. New York: New Century Publishers, 1949. Hellar, Francis H. Introguction to American Constitutional Law. New York: Harper and Brothers, 1952. 284 Hodgkinson, Harry. The Language of Communism. New York: The Pittman Publishing Corp., 1955. Howe, Irving and Coser, Lewis,_The American_Communist Party, A Critical Histogy (1919—1957). Boston: The Beacon Press, 1957. Hoover, J. Edgar. Masters of Deceit. New York: Henry Holt and Co., 1958. Hunt, R. N. Carew. A Guide to Communist-Jargpp. New York: The Macmillan Co., 1957. Lenin, V. I. Selected Works. 12 vols. New York: International Publishers, 1943. Lippman, Walter. Essays in the Public PhilosOphy. Boston: Little, Brown and Co., 1955. Medina, Harold R. The Anatomy of Freedom, edited by Walter Barrett. New York: Henry Holt and Co., 1959. Overstreet, Harry and Bonaro. What We Mupt Know Abopt Communism. New York: W. W. Norton and Co., 1958. Philbrick, Frederick A. Language and the Law. New York: Macmillan and Co., 1949. Philbrick, Herbert A. I Let Three Lives. New York: McGraw—Hill Book Co., 1952. Potter, David, ed. Argumentationfpnd Debate. Prepared under the auspices of Tau Kappa Alpha. New York: The Dryden Press, 1954. Rice, George P. Jr. Law for the Public Speaker. Boston: The Christopher Publishing House, 1958. Shannon, David A. The Doggine of American Communism. New York: Harcourt, Brace and Co., 1959. Spolansky, Jacob. The Communist Trial in America. New York: The Macmillan Co., 1951. Stalin, J. V} Foundations of leninism. vol. V, The Marxist Library, New York: International Publishers, 1935. Stryker, Lloyd Paul. The Art of Advocacy. New York: Simon and Schuster, 1954. 285 Articles and Periodicals Antieau, C. J. "The Rule of Clear and Present Danger: Scope of Its Applicability," 4s Mich. g. g. 812 (1950). Boudin, Louis B. "Seditious Doctrines and the 'Clear and Present Danger Rule'," 38 Virginia p. 11. 143 (1952). Corwin, Edward S. "Bowing Out 'Clear and Present Danger,'" 27 Notre Dame p. p. 325 (1952). Curtis, Charles P. "The Ethics of Advocacy,” Stanford Lg_R=_ vol. 4, Noll (Dec. 1951). Davis, John W. "The Argument of an Appeal," 26 American.Bar Joprnal 895 (Oct. 1949). Dennis, Eugene. "Peace - The Supreme and OvereRiding Issue," Political Affairs, (April, 1951). Gorfinkel, John.A. and Mack, Julian, II. "Dennis v. United States and the Clear and Present Danger Rule," 39 California L. E. 475 (1952). Jackson, Robert H. ”Advocacy before the Suprene Court, "American Bar Association Journal, V91. 37, No. 11 (Nov. 1951 . Lightfoot, Claude. "Leadership Quality and the Draft-Program Perspectives," Political Affairs, (June, 1954). Meiklejohn, Alexander. "The First Amendment and Evils that Congress Has a Right to Prevent," 25 Indiana L, g, 477 (1951). Truman, Harry S. "Moral Responsibility of the Bar," (A Letter) Bar Bulletip;of the New York Coupty pryers Association, Vol. 9, No. 3,'(Nov. 1951). Weiner, Frederick B. "Oral Advocacy," Harvard in R. Vol. 62, (1948). Reports and Legal Citations .gaaaeg_guhliahing_gg. v. P tt , 244 Fed. 535 (2nd Cir. 1917). Schenck v. United States, 249 U. S. 47 (1919). Frohwerk v. United States, 249 U. s. 204 (1919). Debs v. United States, 249 U. s. 211 (1919). 286 Abrams v. United States, 250 U. S. 616 (1919), Gitlow v. New York, 268 U. S. 652 (1925). Whitney v. California, 274 U. S. 351 (1927). Near v. Minnesota, 283 U. S. 697 (1931). De Jonge v. Ore on, 299 U. S. 353 (1937). Herndon v. Lowr , 301 U. S. 242 (1937). United States Court of Appeals For The Second Circuit, No. 21438 — October Term, 1949, United States of America, Appellee, v. Eugene Dennis et al, Defendants - Appellants, On Appeal from Judgments of Conviction of the United States District Court for the Southern District of New York, Brief For Appellants, (New York: Adams Press, Inc., 1950). United States Court of Appeals For The Second Circuit, United States of America, Appellee, v. Eugene Dennis et al, Defendants - Appellants. Joint Appendix. Vols. 1—20. New York: Adams Press, Inc., 1950. United States Court of Appeals For The Second Circuit, United States of America, Appellee, v. Eugene Dennis et al, Appellants. Brief For The United States. New York: Record Press, 1950. United States v. Dennis gt pl, 183 F. 2d 291 (1950). In The Supreme Court of the United States, No. 336 - October Term, 1950, Eugene Dennis et al, Petitioners, v. United States of America. Brief For Petitioners. New York: Adams Press, Inc., 1950. In The Supreme Court of the United States, No. 336 — October Term, 1950, Eugene Dennis et a1, Petitioners, v. United States of America. Brief For The United States. New York: Record Press, 1950. Dennis v. United States, 341 U. S. 494 (1951). Pennsylvania v. Nelson, 350 U. S. 497 (1956). Yates v. United States, 354 U. S. 298 (1957). 287 Uppublished Material Baker, Merrill T. "A Rhetorical Analysis of Thomas Erskine's Courtroom Defenses in Cases Involving Seditious Libel," Unpublished Ph.D. Dissertation, State University of Iowa, 1952. Johnson, Frank C. "A Rhetorical Analysis of the ScOpes Trial," Unpublished Ph.D. Dissertation, Western Reserve University, 1954. ' Strother, David B. "Evidence, Argument, and Decision in Brown v. Board of Education," Unpublished Ph.D. Dissertation, University of Illinois, 1958. Swineford, Patricia, "An Analysis of the Persuasive Techniques Used in the Summation Pleas of the First Trial of the Sacco—Vanzetti Case," Unpublished M. A. Thesis, Bowling Green State University, 1953. Vanderpool, William Sherman, ”The Rhetorical Principle Enunciated in Supreme Court Decisions Affecting Free Speech," Unpublished Ph.D. Dissertation, Louisiana State University, 1953. Wright, Warren Earl, "The Rhetoric of Learned Hand in Selected Civil Liberties Cases: A Method for Analysis of Judicial Opinions," Unpublished Ph.D. Dissertation, University of Illinois, 1960. The Smith Act and The Supreme Court: An American Civil Liberties Union Analysis, Opinion and Statement of Policy. New York: American Civil Liberties Union, 1952. Digest of the Public Record of Communism in the UnitedFStates, New York: The Fund for the Republic, 1955. “ Other Sources Telephone interview with Louis F. McCabe, Attorney, Philadelphia, Pa., June 15, 1962. Letter from George W. Crockett, Jr. to T. N. Smith, dated March 19, 1964. ANTON WELU CO. PRINTING AND IOOKNNDING DUIUQUE, IOWA HICHI 3 GAN STATE UNIV. LIBRRRIES HIUIMIll!HI”WIWIHIIIIHIIIIIIHIIWMHWHI 1293107085866