ASAP AMERICAN LEGAL HISTORY

Tonight’s Timeframe . . . Civil War & Reconstruction → 1860 - 1877

Gilded Age → 1870s - 1900

Progressive Era → 1890s - 1920

American Imperialism → 1880s - 1914

World War I → 1914 - 1918

The Roaring Twenties → 1920 - 1929

Great Depression & New Deal → 1929 - 1941

World War II → 1941 - 1945

Post-War Boom → 1946 - 1959

Cold War → 1945 - 1991

Civil Rights Movement → 1954 - 1968

New Frontier & Great Society → 1960 - 1968

Vietnam War - 1954 - 1975

Era of Social Change - 1960 - 1980

End of the Century → 1980 - 2000

New Millenium → 2001 -

American Legal History II Civil Liberties in Wartime - The Cold War

What is the role of law in society? How does law impact society? How does context impact law?

"Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be

violated."

Do the ends justify the means?

What is the balance between liberty and security?

What should be the status of civil liberties in wartime?

Do we claim that new wars are without precedent to justify new limitations upon

the freedoms guaranteed by the First Amendment?

Pre-World War II Anti-Communist Actions ● Palmer Raids and the First Red Scare

○ 1917 - 1920 ○ Failure to distinguish (Communist, Anarchist, Socialist)

● Smith Act (1940): ○ Alien Registration ○ Criminal offense to advocate the violent overthrow of the government or to

organize or be a member of any group or society devoted to such advocacy.

● Dies Committee (1938 - 1944) ○ Special Investigating Committee ○ Investigate alleged disloyalty and subversive activities on the part of private citizens, public

employees, and those organizations suspected of having communist or fascist ties ○ Communist Focus ○ Japanese Camp Report - “Yellow Report” ○ Declined KKK investigation

Cold War - Framing the Conflict

● Russian Revolution and the Soviet Union ● Stalin, 5-Year Plan, and Modernization ● Nazi-Soviet Non-Aggression Pact ● Stalingrad and the Eastern Front ● Tehran, Yalta, Potsdam, and Wartime Relations among the Allies ● Manchuria, Japan, Atomic Bombs, and the end of the war in the

Pacific ● Two superpowers remain

Cold War - Scope of the Conflict

● Post-War world and divided worldviews ● NATO, Warsaw Pact, and divided Europe ● Hearts and Minds and the 3rd World → Proxy Wars

○ Foreign Policy Doctrines ● Espionage

○ NSA/CIA vs. NKVD → KGB ● Arms Race → M.A.D. ● Space Race ● Hot and Cold

Communism in America

● Rise in Membership 30s and 40s ● CPUSA ● Goals/Objectives → Convert via education and persuasion ● Spectrum (Moderate → Radical) ● Comintern → 5th Column ● “Fellow Travellers” ● Communist Fronts ● Targeted Groups → Labor Unions, Teachers/Professors, Government

Agencies (especially State), Radio, Movies, TV, Newspapers, Libraries, New Deal Democrats

Cold War - Anti-Communist Sentiment ● Subversion ● Preserve National Security ● Preventing Espionage ● Preserving Secrets ● Threat to established order ● “Infection” and a “Cancer”

○ Godless ○ Danger to American values ○ Foster industrial strife and redistribute capital ○ Poison national values (school, newspaper, movies) ○ Political taint would destroy liberty, justice, and goodness ○ Corruption of public officials would subvert government from within.

Cold War - Anti-Communist Propaganda

How to Identify a Communist . . .

The Arms Race and Early Cold War Context

● Free Elections in Eastern Europe blocked. ● Taft-Hartley Act (1947) ● HUAC elevated to standing committee (1947) ● Truman Doctrine → Aid to Greece ● Berlin Blockade/Airlift (1948 - 1949) ● People’s Republic of China (1949) ● Russia’s first atomic test (1949) ● Alger Hiss Accusation (1948) and Perjury Conviction (1950) ● Korean War begins (1950)

How was the Cold War different from wars previously discussed in class?

Why are these distinctions important to the state of civil liberties?

HUAC - 1945 - 1959

● Hollywood Ten ● Used by Republicans in 1948 Election ● 1949 Global Events, Distrust of

Soviets, Promotes HUAC

McCarthyism - 1950 - 1954

● 2/1950 → McCarthy at Wheeling (205 Names) ● Republican opportunism and public opinion. ● Korean War → Hysteria → Local repression ● McCarran Internal Security Act :

○ Registration of Communist Action and Front Organizations; Detention if war arose

○ Veto Override ● Red-Baiting and ‘50 Midterms ● Eventual downfall - Army-McCarthy Hearings ● Larger Questions:

○ Who is the larger threat? Communist or Anti-Communist?

What was the state of the First Amendment during the Cold War?

How can the court’s interpretation of the 1st Amendment be compared to the

World War I era?

Dennis v. U.S. (1951) ● Eugene Dennis and Others →

CPUSA/Labor Leaders ● Filed false affidavits → Taft-Hartley ● Received NLRB services →

Conspiracy/Fraud ● Values, teaching, & free speech. ● What did the 1st Amendment require?

Clear and Present Danger ○ Advocacy of ideas? ○ “Gravity of evil” → Conspiring to

advocate. ● 1st Amendment → How or Whom? ● 6 - 2 Decision

○ Excerpts ● Post-Trial Prosecutions → 126 indicted; 93

of 106 convicted

In times of panic do we fear freedom?

Loyalty Oaths

● What is disloyalty? Should loyalty be enforced? ● Executive Order 9835 ● Present and Prospective Employees ● Disloyal → “Membership in, affiliation with or sympathetic association with any

foreign or domestic organization . . . designated by the Attorney General as totalitarian, fascist, Communist, or subversive.”

● Hearing? Judicial Review? Due Process? ● Witch-hunting → Re/Opening Files & Perpetual Jeopardy ● 12/1947 → List of subversive organizations ● 254 by 1953; Executive Order 10450 - Lower standards; 5th Amendment ● 4.7 Million Investigated → 40,000 Further → 8000 Charged → 350

Discharged (2200 Resigned)

Adler v. Board of Education (1951)

● Loyalty Oaths → Feinberg Law ● Subversive Organizations → Dismissal ● Questioning by Superintendent ● New York Teachers’ Union Suit ● "Are you now or have you ever been a member of the Communist

Party?" ● Refusal → Dismissal ● 6 - 3 Decision:

○ Excerpts

“Although government cannot expropriate property without the payment

of compensation even for defense and security, it can in the name of security expropriate without compensation a

person’s reputation . . .”

Brown v. Board of Education (1954)

● Segregation as un-American. ● Justice Department Amicus Curiae ● Communist Propaganda ● “You may imagine what good use we are making of the decision . .” ● American Psy-Ops and the state of racism. ● Compartmentalizing History vs. Utilizing Context

○ Dichotomous Narrative ● Organizing Cases Doctrinally vs. Artificial Barriers

Changing Context of the Cold War

● Korean War Armistice (1953) ● Stalin’s Death (1953) ● Downfall of McCarthy → Censure (1954) ● Khrushchev denounces Stalin (1956) ● Relaxed public hysteria → Peaceful coexistence? ● 4 New Justices on the Supreme Court

Cole v. Young (1956)

● Cole → FDA Inspector ● Veterans Preference Act (1944) ● Employment inconsistent with national security ● When may an employee be discharged under the Veterans'

Preference Act for implicating national security? ● 6 - 3 Decision

Yates v. U.S. (1957)

● 14 Communists from California ● Tried and convicted under Smith Act ● 6 - 1 Decision:

○ Distinction between the advocacy to Do vs. Believe

○ Nature of Speech and Advocacy ○ Excerpts ○ Decision destroys Smith Act

Rosenberg v. U.S. (1953)● Julius and Ethel Rosenberg ● Violating Espionage Act (1917) ● “Communicating to a foreign

government, in wartime, secret atomic and other military information”

● Radar, Sonar, Jet Propulsion, & Nuclear Weapons Designs

● Convicted and sentenced to death ● Tried under Atomic Energy Act? →

Stay ● 6 - 3 Decision to vacate stay ● VENONA Project

New York Times Co. v. U.S. (1971) - Context ● Context:

○ Vietnam ○ Protest ○ Top secret “history” (1967) ○ Leak

● NY Times and Washington Post publication ● Administration’s response and prior restraint ● Section 793 of the Espionage Act ● Question → Did the Nixon administration's efforts to prevent the publication of

what it termed "classified information" violate the First Amendment? ● 6 - 3 Decision