43 Pages Posted: 4 Mar 2006
This is a review essay of Martin Redish, "The Logic of Persecution." This book wades into the debate over the legacy of the anti-Communism of the late 1940s and 1950s. Its unique contribution is to approach this controversy from the perspective of First Amendment theory, taking into account recent evidence that the Communist Party, USA (CPUSA) was the American arm of the Stalinist Soviet enemy, and was heavily implicated in espionage against the United States.
Part I of this Review discusses the Smith Act prosecutions, in CPUSA leaders were prosecuted for promoting violent revolution against the government. This Reviewer agrees with Redish's conclusion that the prosecutions were unconstitutional. However, in judging the Smith Act prosecutions, historians may consider not only constitutional issues, but the moral status of the defendants; whether freedom of expression suffered any lasting harm; and whether the goal of destroying the CPUSA's usefulness to the USSR for espionage was, in context, a particularly important one.
Part II of this Review evaluates the infamous blacklist by Hollywood movie studios of members of the CPUSA. Redish concludes, and this Reviewer agrees, it was entirely appropriate - under the First Amendment, and also morally - for businesses and individuals to boycott members of the Stalinist CPUSA.
Finally, Part III of this Review discusses whether state and local governments acted within their constitutional authority in refusing to hire CPUSA members as teachers. Redish concludes that school authorities did not violate the First Amendment when they excluded devoted Communists from teaching classes in subject areas that required teachers to pass along a liberal democratic perspective to their students. Part III reviews some objections to Redish's conclusion, and suggests that monitoring compliance with the assigned curriculum would have been an alternative means of accomplishing the government's agenda.
Keywords: McCarthy era, red scare, First Amendment
Suggested Citation: Suggested Citation
Bernstein, David, The Red Menace Revisited. Northwestern University Law Review, Forthcoming; George Mason Law & Economics Research Paper No. 06-04. Available at SSRN: https://ssrn.com/abstract=887773