California Law Review, Inc.
Free Speech in the Age of McCarthy: A Cautionary Tale
Author(s): Geoffrey R. Stone
Reviewed work(s):
Source: California Law Review, Vol. 93, No. 5 (Oct., 2005), pp. 1387-1412
Published by: California Law Review, Inc.
Stable URL: http://www.jstor.org/stable/30038489 .
Accessed: 04/01/2013 14:38
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp
.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact [email protected].
.
California Law Review, Inc. is collaborating with JSTOR to digitize, preserve and extend access to California
Law Review.
http://www.jstor.org
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
Free Speech in the Age of
McCarthy: A Cautionary Tale
Geoffrey R. Stonet
Editor's Note: Professor Stone adapted thefollowing Articlefrom
his keynoteaddress at the ThomasM. Jorde Symposium,February
12, 2004, at the School ofLaw, Universityof California,Berkeley
(BoaltHall). Theannual symposiumis co-sponsored by Boalt Hall
and the Brennan Centerfor Justice at NYU School ofLaw.
An Addressin Honorof WilliamJ. Brennan,Jr.
I am delighted to have the privilege of giving this lecture in honor of
Justice Brennan.The year I spent as his law clerk-October Term 1972was one of the most challenging and rewardingof my life. Justice Brennan
was a man of extraordinarycourage, insight, and vision. The idea of rememberinghim each year with a lecture dedicatedto his spirit is both fitting and inspiring.
Why, then, a lecture on the Age of McCarthy?This year marks the
fiftieth anniversaryof SenatorJoseph McCarthy'scondemnation,and fifty
years is always a good time to take stock. Moreover,the Age of McCarthy
bears some relation to the present. Though history never repeatsitself precisely, it does repeatits generalthemes, and it is helpful to know our past if
we are to cope well with our present. Finally, there has been a disturbing
movement recently to rehabilitate Joseph McCarthy. In her new book,
Slander, for example, Ann Coulter refers to McCarthyismas a "paranoid
liberal fantas[y],"'and in a more serious work, ArthurHermanargues that
Joseph McCarthywas "more right than wrong in terms of the larger picture."2His mistake, Herman says, was to make "a good point badly."3I
CopyrightC 2005 CaliforniaLaw Review, Inc. CaliforniaLaw Review, Inc. (CLR) is a California
nonprofitcorporation.CLR and the authorsare solely responsiblefor the contentof theirpublications.
t HarryKalven, Jr. Distinguished Service Professor of Law, The University of Chicago. This
R. STONE,
Article is adapted from my speech at the 2004 Jorde Symposium and from GEOFFREY
PERILOUSTIMES:FREE SPEECH IN WARTIMEFROMTHE SEDITIONACT OF 1798 TO THE WAR ON
TERRORISM
(2004). I would like to thank Shana Wallace, Kelsi Corkran,and Ajay Kundariafor their
superbresearchassistance.
RIGHT86 (2002).
LIBERAL
LIESABOUTTHEAMERICAN
SLANDER:
1. ANNCOULTER,
2.
ARTHUR HERMAN, JOSEPH MCCARTHY: REEXAMINING THE LIFE AND LEGACY OF AMERICA'S
1387
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
LAWREVIEW
CALIFORNIA
1388
[Vol.93:1387
want to correctthe record.What I want to do is tell you a story. Think of it
as a bedtime story, but one with goblins. It is a cautionarytale.
It is August 1945. World War II draws to a close. The world is at
peace. The United States has the strongesteconomy and the most powerful
military in the world. The prospect for civil liberties seems bright, and the
ACLU looks optimisticallyto the future. It is a time for Americans to enjoy the hard-won fruits of national sacrifice. But optimism fades quickly.
The year 1946 brings severe economic dislocations. Shortagesand strikes
rack the nation, and the collapse of the Soviet-Americanwartime alliance
sours the national mood. FranklinRoosevelt had promised an era of U.S.Soviet collaboration,but PresidentTrumannow bitterly assails the Soviets
for blocking free elections in EasternEurope.
Two spy scares deepen the nation's anxiety. The public learns that
secret documents about China have been leaked to a leftist journal,
Amerasia, and Canadacharges that duringthe war twenty-two individuals
had conspired to steal information about the atom bomb for the Soviet
Union. Shortly thereafter,a House subcommitteerecommends a new federal loyalty program to protect the United States "against individuals
whose primaryloyalty is to governmentsotherthan our own."4
As the 1946 midterm elections approach, President Truman comes
under increasing attack from an anti-New Deal coalition of Republicans
and Southern Democrats who excite fears of Communist subversion. In
California,RichardNixon, just thirty-threeyears old, charges that his congressional opponent, Jerry Voorhis, votes the "Moscow" line.5 In
Nebraska, RepublicanSenatorHugh Butler charges that "if the New Deal
is still in control of Congress after the election, it will owe that control to
the Communist Party."6B. Carroll Reece, chairman of the Republican
National Committee, proclaims that the "stark choice" which confronts
Americans is between Republicanismand Communism.7The Republicans
win a stunningvictory, picking up fifty-four seats in the House and eleven
in the Senate and taking control of both chambers.Fearhas proved a potent
MOSTHATEDSENATOR139 (2000).
3.
4.
Id. at 100.
Thomas I. Emerson & David M. Helfeld, LoyaltyAmong GovernmentEmployees, 58 YALE
L.J. 1, 18 (1948) (quoting COMMITTEEON THE CIVIL SERVICE, 79TH CONG., REPORT OF
WITH RESPECTTO EMPLOYEELOYALTYAND EMPLOYMENT
INVESTIGATION
POLICIESAND PRACTICES
IN THEGOVERNMENT
OF THEUNITED STATES7 (1946)).
5.
EARLMAZO & STEPHENHESS, NIXON: A POLITICAL
PORTRAIT40 (1968).
DAVID M. OSHINSKY,SENATORJOSEPHMCCARTHYAND THE AMERICANLABORMOVEMENT
6.
53 (1976).
7.
DAVID CAUTE, THE GREAT FEAR:THE ANTI-COMMUNISTPURGE UNDER TRUMAN AND
EISENHOWER26 (1978); see ROBERT JUSTIN GOLDSTEIN, POLITICALREPRESSIONIN MODERN
AMERICA:FROM 1870 TO THE PRESENT 295-96 (1978); ROBERT GRIFFITH, THE POLITICS OF
FEAR:JOSEPHR. MCCARTHYAND THE SENATE 11-12 (1970); HERMAN,supra note 2, at 39; THOMAS
C. REEVES,THE LIFE AND TIMESOF JOEMCCARTHY:A BIOGRAPHY100 (1982).
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
2005]
FREESPEECHIN THEAGEOFMCCARTHY
1389
politicalweapon.The Democratsscrambleto respond.Truman'sLabor
Secretarydemandsthatthe CommunistPartybe outlawed."Why,"he asks,
"shouldtheybe ableto electpeopleto publicoffice?"8'
The new Republican-controlled
Congresspromptlydeclaresits intention to play the Red card.The HouseUn-AmericanActivitiesCommittee
(HUAC) announcesan aggressiveprogramto expose Communistsand
J. ParnellThomas,the rabidnew Republican
Communist-sympathizers.
chairmanof HUAC,pledgesthathis committeewill "ferretout"thosewho
seekto subvertthe Americanway of life.9
Trumanis caughtin a vise. Republicansaccusehim of being soft on
Communism,whileprogressivesin his own partyaccusehim of beingtoo
rigidin dealingwiththeRussians.
The Presidentlaunchesa bold two-prongedprogramto protecthis
flanks. On March 12, 1947, he announceswhat became known as the
The policypledgedthatthe UnitedStateswouldcomTrumanDoctrine.o1
as
U.S.
mit,
diplomatGeorgeKennanlaterputit, all of its mightto contain
andconfrontthe Sovietswheneverandwhereverthey encroach"uponthe
interestsof a peacefuland stableworld.""Noting the enormityof this
advisesTrumanthatif he wants
commitment,SenatorArthurVandenburg
the Americanpeopleto supportthis policyhe will haveto "scarethe hell"
out of them.12Trumanagrees. With this stroke, Trumaneffectively
definestheprogressivesas soft on Communism.
Nine days later,Trumanannouncesthe secondprongof his strategy.
In orderto defangthe Republicans,
he establishesby executiveordera loyfor
all
federal
Underthisprogram,the firstof its
altyprogram
employees.13
kind in Americanhistory, every present and prospectivefederal employee-more than4 millionpeople-will be subjectedto a loyaltyinvesThe executiveorderprovidesthatno individualmayhenceforth
tigation.14
workforthe federalgovernmentif "reasonable
groundsexist"forbelieving
8.
9.
CAUTE, supra note 7, at 27.
John D. Morris, House Body Maps Exposing of Reds in Labor Unions, Schools and Films,
N.Y. TIMES,Jan. 23, 1947, at Al; see also RICHARDM. FREELAND,THE TRUMANDOCTRINEAND THE
ORIGINSOF MCCARTHYISM:
FOREIGNPOLICY,DOMESTICPOLITICS,AND INTERNALSECURITY1946-
1948, at 132-33 (1972).
10. President Harry S. Truman,Address Before a Joint Session of Congress (Mar. 12, 1947),
available at http://www.yale.edu/lawweb/avalon/trudoc.htm.
11. George F. Kennan, The Sources of Soviet Conduct, 25 FOREIGN
AFF. 566, 581 (1946)
(writtenunderthe pseudonym"X").
ATHAN THEOHARIS,SEEDS OF REPRESSION:
12.
HARRY S. TRUMAN AND THE ORIGINS OF
55-56 (1971).
MCCARTHYISM
Exec. Order No. 9835, 12 Fed. Reg. 1935 (Mar. 25, 1947) (entitled "Prescribing Procedures
13.
for the Administration of an Employees Loyalty Program in the Executive Branch of the
TESTSIN THE
Government"). See generally RALPHS. BROWN,LOYALTYAND SECURITY:EMPLOYMENT
UNITED STATES (1958); GOLDSTEIN,supra note 7, at 299-302; REEVES, supra note 7, at 124-25;
GEOFFREYR. STONE, PERILOUSTIMES:FREE SPEECHIN WARTIMEFROMTHE SEDITIONACT OF 1798
TO THE WAR ON TERRORISM323-30 (2004). For historical background on the Federal Employee
Program, see FREELAND,supra note 9, at 117-20.
14.
See Exec. OrderNo. 9835, 12 Fed. Reg. 1935 (Mar.25, 1947).
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
1390
CALIFORNIA
LAWREVIEW
[Vol.93:1387
that he may be "disloyalto the Governmentof the United States.""'Among
the activities that can be deemed "disloyal" is any "[m]embershipin,
affiliation with or sympathetic association with any foreign or domestic
organization... designatedby the Attorney General as... communist, or
subversive.'"16
This is a criticaljuncturein our story, for it is at this moment that the
era of "McCarthyism"begins to unfold. This is therefore an opportune
moment for a brief interlude.Who were these "Reds"about whom everyone was so excited?
The CommunistParty of the United States (CPUSA) was founded in
1919. It never attainedany appreciablesize. At the peak of its membership,
in 1940, it had barely 100,000 dues-payingmembers,and from an electoral
standpoint,the Partywas effectively irrelevant.WhereasEugene Debs had
received about 900,000 votes in both 1912 and 1920 as the Socialist Party
candidatefor President,CommunistParty candidatesnever garneredmuch
beyond 10% of that number,and no member of the CommunistParty was
ever elected to Congress."
Who joined the CommunistParty or became a so-called fellow traveler? The vast majorityof American"Reds"were drawnto Communismin
the 1930s, not to serve the Soviet Union, but because Communismseemed
a viable hope in the struggle for justice at home and against fascism
abroad.Most of those who turnedto Communismdid so as a consequence
of the Depression, which brought with it a profound sense of despair and
dislocation. With a third of all Americans unemployed, the Depression
triggered a severe loss of confidence in America's business and political
leaders, a widespreaddemand for economic and social reform, and a desperate search for answers.'8
After 1929, people listened more attentively to pleas for a planned,
classless society in which each individual would contributeaccording to
his ability. On urbanbreadlinesand devastatedfarms, Americans increasingly questioned the cruel consequences of capitalism.'9With President
Roosevelt's recognitionof the Soviet Union in 1933, Americanswere more
open than ever to learning about Communism. The CPUSA advocated
15. Id. at 1938.
16. Id.
17. In the 1924 presidentialelection, the CommunistParty candidatereceived 33,361 votes; in
1928, 48,770 votes; in 1932, 102,991 votes; in 1936, 80,159 votes; and in 1940, 46,251 votes. In 1944,
there was no CommunistPartycandidatefor President,and in 1948 the party supportedthe Progressive
Party candidate, Henry Wallace. See ALAN BARTH,THE LOYALTYOFFREEMEN 24-25 (1952); CAUTE,
supra note 7, at 185-86. The originaltwo Communistpartiesin the United States fused into the CPUSA
in 1923.
18. Cf HERMAN,
supra note 2, at 65.
19.
Cf id. (citing EUGENE LYONS, THE RED DECADE:THE CLASSICWORK ON COMMUNISMIN
AMERICA
DURING
THETHIRTIES
191 (1941)).
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
2005]
FREESPEECHIN THEAGEOFMCCARTHY
1391
public housing to replace slums and public works to provide jobs; it
championed racial equality and the rights of labor; it opposed fascism
abroad and repressive social and economic structuresat home. As such
progressive voices as the New Republic and the Nation acknowledged,
New Deal liberalismand Communismsharedsome of the same ideals.20
Moreover, in an era of intense social turbulenceand political exuberance, hundreds of clubs, associations, committees, and alliances sprang
into being to fight for economic, social, political, racial, and international
justice. The overlap between these groups and the CPUSA in the causes
they supported, their memberships, and their cooperation in sponsoring
rallies and otherevents was often extensive. Most membersof these groups
were not Communists, or even Communist "sympathizers,"but they and
the Communistssharedmany of the same goals. Hundredsof thousandsperhaps millions-of Americans joined such organizationsin the 1930s,
not because they wanted to overthrowthe government,but because they
wantedto help good causes as a civic duty.21
After the United States enteredWorld War II as an ally of the Soviet
Union, Americans viewed both Russia and the CPUSA more favorably
than at any time since the Russian Revolution. FDR confidently assured
Americans that "we are going to get along very well with.., .the Russian
people-very well indeed."22With the end of World War II, and as the internationalsituationdeteriorated,most Americanswho still had ties to the
Communist Party or to organizations or causes with connections to the
CommunistParty quickly severed them.23But by then, it was too late. The
most infamous question of the next two decades-"Are you now or have
you ever been ... ?"-encompassed the past.24
20.
21.
See HERMAN,supra note 2, at 65.
As futureSupremeCourtJustice Abe Fortasobserved:
[I]n the thirties and part of the forties, thousands of fine, thoroughlynon-Communistpeople
contributed to Spanish relief organizations, attended anti-Fascist meetings, participatedin
rallies against Hitler, joined in organizationsto promote friendship with the Soviet Union
when it was our wartimeally, and even took out membershipsin book clubs to get books and
phonographrecordsat a discount.
Abe Fortas, Outside the Law, ATL. MONTHLY,Aug. 1953, at 42, 44-45, excerpted in LAURA KALMAN,
ABE FORTAS:A BIOGRAPHY131 (1990).
22.
JAMES MACGREGOR BURNS, ROOSEVELT: THE SOLDIER OF FREEDOM 416
(1970);
see
also
FREELAND,supra note 9, at 38-39; GOLDSTEIN,supra note 7, at 287-88.
23. After August 23, 1939, when the Soviet Union and Nazi Germany signed a nonaggression
pact, the CPUSA lost most of its members. During World War II, the CPUSA, underthe leadershipof
General SecretaryEarl Browder, worked closely with the United States to supportthe war effort. In
anticipationof continued cooperationbetween the United States and the Soviet Union, the party even
softened its opposition to capitalism. As the war drew to a close, however, and Soviet-American
relations began to deteriorate,Earl Browder was replaced by leaders who reflected a more hard-line
approach.Under William Z. Foster, Eugene Dennis, and Robert Thompson, the CPUSA embraced a
more confrontationalattitude.But even in the darkestdays of the Cold War, the party did not seriously
entertainany revolutionaryschemes, and there was no credible evidence that the CPUSA ever drew up
any plans for sabotageor espionage, even in the event of war with the Soviet Union. CAUTE,supra note
7, at 186-87.
24. See STONE,supra note 13, at 322.
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
1392
LAWREVIEW
CALIFORNIA
[Vol.93:1387
We returnnow to 1947 andthe Trumanloyaltyprogram,which defined "disloyal"as any "[m]embership
in, affiliationwith or sympathetic
associationwithanyforeignor domesticorganization
... designatedby the
Onecanbeginto see
AttorneyGeneralas ... communist,or subversive.'"25
the implications.
The AttorneyGeneral'slist initiallyencompassedseventy-eightorganizations,but quicklyswelledto morethan250, including,for example,
the International
WorkersOrder,a fraternal
benefitsocietythatspecialized
in low-cost insurance,and the Joint Anti-FascistRefugee Committee,
whichprovidedrelieffor refugeesof the SpanishCivilWar.26
Inclusionof
an organizationon the AttorneyGeneral'slist was tantamount
to public
Contributions
dried
branding.
up, membershipdwindled,meetingplaces
The greatestimpactof the list, however,was on the freedom
disappeared.
of Americancitizens.Becausethe list's criteriawere vague and undishad no rightto contesttheirlisting,andbeclosed,becauseorganizations
causenew groupswere constantlybeingaddedto the list, individualshad
to be waryaboutjoiningany organization.
The only "safe"coursewas to
join nothing.27
How did the loyalty programwork? Every federalemployee and
ineveryapplicantfor federalemploymentwas subjectedto a preliminary
If
that
uncovered
information,
vestigation.
investigation
any "derogatory"
the FBI would conducta "full field investigation"-athoroughprobeof
the individual'srelationships,sympathies,associations,beliefs, writings,
and intentions.FBI agentswould interviewthe individual'scurrentand
formerfriends,neighbors,teachers,coworkers,employers,andemployees
in an effortto learnwhattheythoughtof his loyalty,whatorganizations
he
hadjoined,whatjournalsandbookshe had read,andwhatsentimentshe
had expressed.Forty-thousand
Americanswere subjectedto such investigations.28
All this information
was then compiledin an FBI dossierandturned
over to a loyaltyboard,which conveneda formalhearingif therewere
"reasonablegrounds"to doubt the individual'sloyalty.29Althoughthe
"suspect"couldappearbeforethe loyaltyboard,consultwith counsel,and
presentwitnessesin his "defense,"he had no rightto confrontthe witnessesagainsthim or, moreimportant,
even to learntheiridentity.30
These
25.
26.
Exec. OrderNo. 9835, 12 Fed. Reg. 1935, 1938 (Mar.25, 1947).
See CAUTE,supra note 7, at 172-78.
27.
See ELEANOR BONTECOU, THE FEDERAL LOYALTY-SECURITYPROGRAM204
GOLDSTEIN,supra note 7, at 310-11.
(1953);
28. STONE,supra note 13, at 348. From the FBI's perspective, it was useful to retain all
informationbecause one could never know what tidbit might somedayprove helpful.
29.
See CAUTE,supra note 7, at 115-16; THEOHARIS,
supra note 12, at 109-10.
30.
BARTH,
supra note 17, at 109, 158. See generally BONTECOU,
supra note 27, at 82-95.
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
2005]
FREESPEECHIN THEAGEOFMCCARTHY
1393
The charges
hearingstook on the characterof a "medievalinquisition."31
were often vague and almostimpossibleto rebut,as in this hypothetical
"Youhavebeen accusedof sympathetically
interrogation:
associatingwith
membersof an organization
knownto be subversive.Whatsay you?"But
with whom?Whichorganization?
Where?When?How?A signatureon a
a
a
name
small
on a mailinglist, presenceat a public
donation,
petition,
association.
meeting-all couldtriggersuspicionof "sympathetic"
Evenpassingoverthe unfairnessto thosewho weredischargedor deniedemployment,
the impactof theprogramwas devastating.Merelyto be
suspectedandcalledto defendoneselfin a loyaltyinvestigationwas terriregardlessof outcome.
fyingandruinousto reputation,
of
the
elusivenessof the very conceptof disloybecause
Moreover,
to say the CommunistParty
alty-is it disloyalto call for disarmament,
shouldbe legal,to subscribeto the CommunistPartynewspaper?-nofederalemployeeor prospectivefederalemployeecouldeverconsiderherself
exemptfromthe perils of investigation.Any slip of the tongue,any unguardedstatement,any criticismof governmentpolicy couldleadto one's
undoing.The anonymityof informersleft every individualopen to fools,
and personalenemies.32The
schemers,paid informers,scandalmongers,
down andneverlook up. As
sane
was
to
one's
head
approach
keep
only
one governmentemployeetellinglyremarked,"If Communistslike apple
pie andI do, I see no reasonwhy I shouldstopeatingit. ButI would."33
We returnnow to the centraltimelineof the story.In 1949,Chinafell
to the Communists.
Overnight,almosta fifthof the world'spopulationwas
"lost"to the Reds.Americanswere stunnedandfrightened.At almostthe
same time, the Soviet Union detonatedits first atom bomb. Americans
werethrownintoa panic.Somecommunitiesissueddog tagsto childrenso
theirbodiescouldbe identifiedaftera nuclearattack.Editorialsadvocated
a preemptivewar against the Soviet Union "before it is too late."
Everywherewerethe questions:How hadwe lost China?How hadRussia
gottenthebomb?34
Republicansimmediatelylinkedthese questionsto their chargesof
Communistinfiltration.Onlyperfidy,theyargued,couldhavecausedsuch
disasters.Americansincreasinglycameto believethatthe greatestthreatto
thenationalsecuritywasthebetrayalof Americaby Americans.35
31. GOLDSTEIN, supra note 7, at 302; see also BARTH, supra note 17, at 49.
32. BONTECOU, supranote27, at 129; CAUTE, supranote7, at277-78.
33. CAUTE,supra note 7, at 276; see also BARTH,supra note 17, at 127; BROWN,
supra note 13,
at 183-93; STONE,supra note 13, at 341-52.
34.
DAVID H. BENNETT, THE PARTY OF FEAR: FROM NATIVIST MOVEMENTS TO THE NEW RIGHT
INAMERICAN
291 (1988).
HISTORY
35. See THEOHARIS, supra note 12, at 98-99.
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
1394
CALIFORNIA
LAWREVIEW
[Vol.93:1387
In early 1950, PresidentTrumanannouncedthat the United States
would develop a hydrogenbomb. Albert Einsteinwarnedthat such a
weaponcouldend all life on Earth.Americansbeganto buildbombshelters andto discussthe need for mass gravesin the eventof nuclearwar.36
Fourdayslater,KlausFuchs,a Britishphysicist,confessedto passingU.S.
atomicsecretsto the Soviets.37
Fuchs'sconfessionled to the arrestof several alleged conspirators,including Julius and Ethel Rosenberg.38
RepublicanSenatorHomerCapehartfumed,"How much more are we
goingto haveto take?... In the nameof heaven,is this the bestAmerica
cando?"39
It was at this momentthat SenatorJosephMcCarthyburstuponthe
scene.Aftergraduating
fromMarquette
UniversityLaw School,McCarthy
struggledfor severalyearsas a small-townlawyerin Wisconsin.Then,in
1939, he ran successfullyfor a state circuitjudgeship.At thirtyyears of
age, he was the youngestjudge ever electedin the county.His campaign
tacticswere describedat the time as bare-knuckled,
ferocious,dishonest,
anddevastatingly
effective.
AfterPearlHarbor,McCarthyenlistedin the Marinesandwas sentto
the SouthPacific.Planninga runfor the Senate,he issuedhis own press
releasesandlabeledhimself"TailGunnerJoe"-thoughhe was not a tailhis foot duringa prank,he falsifieda militarycitagunner.Afterfracturing
tion, claiminghe hadbeen injuredin combat.In 1946,he campaignedfor
the Senate,firstplayingthe "Communist
card"whenhe chargedhis opponentwithpavingtheway fortheRussiansin EasternEurope.40
As the election neared,he promisedto remove the "Communistsfrom the public
payroll"and accusedPresidentTrumanof attemptingto "Sovietizeour
farms."41
He won handily.
At the age of thirty-eight,
Joe McCarthyarrivedin the Senatewith an
impressiveheadof steam.Buthe soon floundered.He was perceivedas an
"uncouthoutsider"devoid of personalcharmor legislativeability.42He
earnedthe degradingnickname"ThePepsi-ColaKid"becauseof his work
for the soft-drinklobby.43In need of a "newdirection,"44
he turnedto the
Communistissue.45
36.
37.
38.
REEVES, supra note 7, at 221-22.
BENNETT, supra note 34, at 291.
See generally ROBERT MEEROPOL & MICHAEL MEEROPOL, WE ARE YOUR SONS: THE
LEGACY OF ETHEL AND JULIUS ROSENBERG (1975); RONALD RADOSH & JOYCE MILTON, THE
ROSENBERG FILE: A SEARCH FOR THE TRUTH (1983); WALTER SCHNEIR & MIRIAM SCHNEIR,
INVITATION TO AN INQUEST (1965).
39. GOLDSTEIN,supra note 7, at 320; see also JOSEPH
R. MCCARTHY
8-9 (Allen J. Matusow ed.,
1970); 540,000 Reds in U.S., Hoover Tells Senators, CHI.TRIB.,Feb. 8, 1950, at 3; Walter Trohan,
G.O.P. Maps 1950 Campaign:Sees Struggle Over "Libertyor Socialism," CHI.TRIB.,Feb. 7, 1950, at
1.
40. REEVES, supra note 7, at 85.
41. Id. at 104-05.
42. BENNETT, supra note 34, at 296.
43. Id.; GRIFFITH,
supra note 7, at 16.
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
2005]
FREESPEECHIN THEAGEOFMCCARTHY
1395
And so it was that on February9, 1950, this little-known first-term
senator from Wisconsin exploded into the national headlines.46McCarthy
was scheduled to deliver a routine Lincoln Day address at a dinner sponsored by a Republican women's club in Wheeling, West Virginia.47His
speech incorporatedthe usual conservative bombast about traitors in the
federal government.48But McCarthythen departedfrom his script and assertedthathe was privy to inside information.He said:
Ladies and gentlemen, while I cannot take the time to name all the
men in the State Departmentwho have been named as active members of the Communist Party and members of a spy ring, I have
here in my hand a list of 205-a list of names that were made
known to the Secretaryof State as being members of the Communist Party and who nevertheless are still working on and shaping
policy in the State Department.49
This was a complete fabrication;McCarthyhad no such list.50The
State Departmentimmediately issued a furious denial. Nonetheless, over
the next few days, the story picked up steam, and McCarthyfound himself
at the center of a storm. When called on his lie, he bluffed. On February
10, he offered to show his "list"to a reporter,but then "discovered"he had
left it in anothersuit. PresidentTrumandeclared there was not a word of
truthin McCarthy'scharges. With a breathtakingaudacitythat was to become his hallmark,McCarthyscornfully replied that the President"should
refreshhis memory.""5
Senate Democrats demanded that McCarthy prove his accusations.
After lengthy machinations,McCarthyagreed to give a Senate committee
"detailedinformation"about Communistsin the State Department.Senator
Millard Tydings of Maryland,a conservative Democrat, was appointedto
chair the committee.52As the Tydings Committee worked on its report,
McCarthylashed out, decrying those "egg-suckingphony liberals"whose
"pitiful squealing.., .would hold sacrosanct those Communists and
queers" who had sold China into "atheistic slavery."53He warned that
44. BENNETT, supra note 34, at 296.
45. See DAVID M. OSHINSKY, A CONSPIRACY SO IMMENSE: THE WORLD OF JOE MCCARTHY 5484, 107 (1983); HERMAN, supra note 2, at 51-56; REEVES, supra note 7, at 161, 195.
46. BENNETT,
supra note 34, at 294.
47. Id. at 293.
48. See 96 CONG.REC.1954 (1950) (McCarthyreading,on the Senate floor, a speech he claims
he delivered in Wheeling); see also BENNETT,
supra note 34, at 293 (speech excerpt on alleged traitors
in government).
REPORT
INVESTIGATION:
OF THECOMM.ON FOREIGN
49. STATEDEP'T EMPLOYEE
LOYALTY
TOS. RES.231, S. REP.No. 81-2108, at 152-53 (2d Sess. 1950) [hereinafter
RELATIONS
PURSUANT
LOYALTY
INVESTIGATION
REPORT];see also 96 CONG.REC. 1954 (1950). See generally BENNETT,
SENATOR
H. ROVERE,
JOE
supra note 45, at 108-10; RICHARD
supra note 34, at 293-94; OSHINSKY,
124-26 (1959).
MCCARTHY
50. See GRIFFITH,
supra note 7, at 41-42, 49-51 (tracingorigins of McCarthy'sfigures).
51. REEVES,
supra note 7, at 232.
Feb. 26, 1950, at 26.
52. Senate InquirySet on Acheson Staff N.Y. TIMES,
53. GRIFFITH,
supra note 7, at 89.
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
LAWREVIEW
CALIFORNIA
1396
[Vol.93:1387
"[t]he time has come.., .to pinpointindividuallythe most dangerous
tacticsare the only kindthey understand
Communists,and if lumberjack
thenwe shalluse thosetactics."54
On July 14, 1950, the TydingsCommitteeissuedits report.It concludedthatMcCarthy'saccusationsrepresented"perhapsthe most nefarious campaignof half-truthsanduntruthin the historyof this republic."55
McCarthyimmediatelylabeledthe report"a signal"to the traitorsin our
governmentthatthey neednot fear"exposurefromthis Administration."56
AlthoughMcCarthy'schargeshad been provedboth spuriousandhighly
damagingto innocentindividuals,most Republicansralliedto his cause.
Bolsteredby opinionpolls showinggrowingsupportforhis crusade,mainstreamRepublicans,then out of the WhiteHouse for sixteenyears, saw
McCarthyas their ticket to politicalpower. He was suddenlythe most
sought-after
speakerin the nation.In addressesacrossAmerica,McCarthy
that
therewas a "plot"at the highestlevels of government"to
charged
reduce security . .. to a nullity."57Audiences were swept away by his certi-
tudeandhis patriotism.
On June25, 1950,NorthKoreanartilleryopenedfireon SouthKorea.
Five days later,with U. N. approval,TrumanauthorizedGeneralDouglas
MacArthurto invadeNorth Korea.Withina year, 300,000 Communist
Chinese troops would enter the war, and Americansoldierswould be
boggeddownin a miserableconflictin whichmorethan30,000wouldlose
theirlives. Cominghardon the heels of the loyaltyprogram,the arrestof
the Rosenbergs,the fall of China,andMcCarthy'saccusations,the Korean
Warunleasheda frenzyof anti-Redhysteria.Stateandlocal governments
franticallyenactedtheirown loyaltyprograms,establishedtheirown invesbooks
tigating committees,and removedthousandsof "Communistic"
fromschoolsandpubliclibraries.
In a similarfrenzy,Congresshastilyenactedthe McCarranInternal
deemedCommunist
SecurityAct of 1950,whichrequiredall organizations
54. REEVES, supra note 7, at 299; see also Edwin R. Bayley, McCarthyScores Acheson, Again
Calls for His Removal, MILWAUKEE
J., June 9, 1950, at 1G; M'CarthyLabels Marshall "Unfit,"N.Y.
TIMES, Apr. 21, 1950, at 3.
55. William S. White, Red Charges by M'CarthyRuled False, N.Y. TIMES,July 18, 1950, at 1;
LOYALTY INVESTIGATION REPORT, supranote49, at 151-52;see also REEVES, supranote 7, at 304-07;
William S. White, TydingsChargesM'CarthyPerjuredHimself at Inquiry,N.Y. TIMES,
July 21, 1950,
at 1. In expressing his "IndividualViews," RepublicanForeign Relations Committeemember Senator
Henry Cabot Lodge complained that the investigation had been "superficial and inconclusive." The
M'Carthy Charges, N.Y. TIMES,July 18, 1950, at 28. Even McCarthy apologists like William F.
Buckley, Jr. conceded that McCarthycould legitimatelyhave been censuredfor lying about the source
and nature of his information. See WILLIAMF. BUCKLEY& L. BRENT BOZELL,MCCARTHYAND HIS
ENEMIES: THE RECORD AND ITS MEANING 60 (1954).
26.
56.
White, supra note 55.
57.
REEVES,supra note 7, at 322; see LOYALTYINVESTIGATION
REPORT,supra note 49, at 315-
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
2005]
FREE SPEECHIN THEAGE OF MCCARTHY
1397
or subversiveto disclosethe namesof theirmembers.58
TheAct prohibited
who
was
a
member
of
an
such
any person
organizationfromworkingin
for
the
or
for
any capacity
government
any privateemployerengagedin
defense work.59HarryTrumanvetoed the legislation,explainingthat
the Act would"strikeblows
"[i]nsteadof strikingblows at communism,"
at ourown liberties."60
Truman'sveto was surelycourageous,butby 1950
his own anti-Communism
his plea formoderation.61
undermined
In the rising tideof fear,Truman'sveto was swiftlyoverridden.62
As the 1950 elections approached,Joe McCarthyraced acrossthe
countrycampaigningfor his favoredcandidatesand againstthose he opHe
posed.63He attackedDemocratsas "parlorpinksandparlorpunks."64
with
Senator
Millard
a
pilloried
Tydings
particularvengeance,accusing
himof "protecting
McCarthy'sstaffworkedhand-in-glove
Communists."''
withTydings'sopponentin an effortto bringhimto his knees.66
Theyeven
orchestrate
the
a
circulation
of
that
doctored
helped
photograph purported
to show Tydings huddlingin secret conversationwith leaders of the
Communist
Party.67
Nationally,RepublicanRed-baitingreachedunprecedentedlevels.
JohnFosterDulles, challengingHerbertLehmanfor the U.S. Senatein
New York,saidof Lehman:"Iknowhe is no Communist,butI knowalso
that the Communistsare in his corner."68
In California,Congressman
RichardNixon securedelectionto the Senateby circulatinga pink sheet
accusinghis Democraticopponent,HelenGahaganDouglas,of votingthe
58. InternalSecurity Act of 1950, ch. 1024, 64 Stat. 987 (repealed 1993). The Act had originated
in legislation proposed in 1947 by RepublicansKarl Mundtand RichardNixon. The Mundt-Nixonbill
sputteredin Congress for several years, but in 1950, with Americantroops fighting and dying in Korea,
the Senate overwhelminglyapprovedthe legislation. It sailed throughthe House on a bipartisanvote of
354 to 20.
59.
Id.; see also GOLDSTEIN,supra note 7, at 359; STEFANKANFER,A JOURNALOF THE PLAGUE
YEARS151 (1973).
60. InternalSecurityAct, 1950: Veto Message from the Presidentof the United States, 96 CONG.
REC.15,629-30 (1950).
61.
See generally MILTONR. KONvITZ, EXPANDINGLIBERTIES:FREEDOM'SGAINS IN POSTWAR
AMERICA140-41 (1966); William R. Tanner & Robert Griffith, Legislative Politics and
"McCarthyism ": The Internal Security Act of 1950, in THE SPECTER:ORIGINALESSAYSON THE COLD
WAR AND THE ORIGINSOF MCCARTHYISM174-89 (Robert Griffith & Athan Theoharis eds., 1974);
THEOHARIS,supra note 12, at 116-17, 120-21. For a critical view of Truman's unwillingness to
"expend political capital . . to protect individual liberties," see Athan Theoharis, The Threat to Civil
Liberties, in COLD WAR CRITICS:ALTERNATIVESTO AMERICANFOREIGNPOLICYIN THE TRUMAN
YEARS283-93 (ThomasG. Patersoned., 1971).
62. See 96 CONG.REC.15,632 (1950) (House vote); 96 CONG.REC.15,736 (1950) (Senate vote).
63. BENNETT,supra note 34, at 300.
64. See STONE,supra note 13, at 336.
65. Id.
66. Id.; see also REEVES,
supra note 7, at 315-46.
67. BENNETT,
supra note 7, at 339. The extent of McCarthy's
supra note 34, at 300; REEVES,
actual political influence, as distinct from his perceived political influence, has often been questioned.
See GRIFFITH,
supra note 7, at 195, 239-42.
68. See STONE,supra note 13, at 313.
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
1398
CALIFORNIA
LAWREVIEW
[Vol.93:1387
Communistline. And in Florida, CongressmanGeorge Smathersdefeated
Claude Pepperby attackinghim as "RedPepper."'69
The Democrats attempted desperately to fend off these assaults.
Truman argued that those who claimed that the nation was in peril from
domestic subversionhad "lost all proportion,all sense of restraint,all sense
of patriotic decency."70But to no avail. The Republicans scored major
gains in both the House and the Senate and, most satisfying of all to Joseph
McCarthy,his nemesis-Millard Tydings-was driven from office.
MainstreamRepublicansdrew even closer to McCarthy.They invited
him to deliver a major address at the 1952 Republican National
Convention.He roused the audience, thundering:"I say one Communistin
a defense plant is one Communisttoo many.... One Communist on the
faculty of one university is one Communist too many.... And even if
there were only one Communistin the State Department,thatwould still be
one Communist too many."71The 1952 Republican platform formally
chargedthe Democratswith shielding "traitors,"and the Republicannominee for President,GeneralDwight D. Eisenhower,selected as his runningmate RichardNixon, one of the nation's most infamous Red-baiters.72
The
the
'52
elections, winning not only the House and
Republicans swept
Senatebut the White House as well.
Joe McCarthy,reelectedto the Senate, was now seen as invincible and
as the most feared man in America. Democrats were thoroughly intimidated. Even Lyndon Johnson,leader of the Senate Democrats,was wary of
McCarthy,cautioninghis colleagues, "[Y]ou don't get in a pissin' contest
with a polecat."73The extent to which McCarthy had intimidated the
Senate was evident in an exchange between McCarthy and Herbert
Lehman. During a speech on the floor, McCarthypiled hundredsof documents in front of himself, supposedly substantiatingcharges of Communist
infiltration. He defiantly dared any senator to inspect them. Senator
Lehman, the distinguished public servant accused by Dulles of "having
Communists in his comer," walked to McCarthy's desk and held out his
hand for the documents. There was silence. Then, "McCarthygiggled his
strange, rather terrifying little giggle."74As Lehman looked around the
chamberfor support,"[n]ot a man rose." His fellow senatorslowered their
69.
70.
See id.; Griffith,supra note 7, at 115.
U.S. GOV'T PRINTING OFFICE, PUBLIC
PAPERS OF THE PRESIDENTS OF THE UNITED
STATES: HARRY S. TRUMAN, CONTAINING THE PUBLIC MESSAGES, SPEECHES, AND STATEMENTS OF
THE PRESIDENT, JANUARY I TO DECEMBER 31, 1950, at 702 (1965) (Address in Kiel Auditorium,St.
Louis, on Nov. 4, 1950); see also MAX LOWENTHAL,THE FEDERALBUREAU OF INVESTIGATION
448,
450 (1950); Senators WillAskBudenz to IdentifySecret Communists,N.Y. TIMES, Apr. 16, 1950, at 1.
71. REEVES, supra note 7, at 426.
72.
See GOLDSTEIN,supra note 7, at 327; MAZO & HESS, supra note 5, at 76-89; HERBERTS.
PARMET, EISENHOWER AND THE AMERICAN CRUSADES 97 (1972).
73. ROBERT A. CARO, MASTER OF THE SENATE: THE YEARS OF LYNDON JOHNSON
ROBERT DALLEK, AN UNFINISHED LIFE: JOHN F. KENNEDY, 1917-1963, at 188 (2003).
74.
See STONE, supra note 13, at 391.
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
546 (2002);
2005]
FREESPEECHIN THEAGEOFMCCARTHY
1399
eyes or looked away. McCarthysnarledunderhis breath,"Go back to your
seat, old man."75
With the Senate now firmly in Republicanhands, McCarthybecame
chair of the PermanentSubcommittee on Investigations. He immediately
declared his intention to investigate Communistinfiltrationof the federal
government and of the nation's colleges and universities. He ruthlessly
pursuedhis targets in a marble caucus room that, in the words of one witness, "stankwith the odor of fear."76
In February 1953, McCarthy launched an investigation of Voice of
America (VOA), an agency established duringWorld War II to promote a
positive view of the United States around the world. McCarthycharged
that the VOA was riddled with Communistsand fellow-travelers.In televised hearings,he assertedthat VOA librariescontainedbooks by "known
Communists."When his staff examined VOA catalogues, they rooted out
more than 30,000 volumes written by such "Communist" and
"un-American"authors as Lillian Hellman, Jean Paul Sartre, Dashiell
Hammett, Theodore White, Arthur Schlesinger, Jr., John Dewey, W. H.
Auden, EdnaFerber,and Steven Vincent Benet.77
The EisenhowerState Department,which oversaw the VOA, immediately bannedall books, music, and paintingsby "Communists,fellow travelers, et cetera" from all VOA programs." Terrified VOA librarians
hurriedlydiscardedand even burnedbooks that had been placed on what
appearedto be an official blacklist.79McCarthybadgered and humiliated
VOA personnel. Some resigned in protest;others were fired for refusing to
cooperate.8"During the investigation, one VOA employee committed suicide, writingto his wife, "once the dogs are set on you everythingyou have
done since the beginning of time is suspect."" The hearings uncoveredno
evidence of unlawful conduct.82
By mid-1953, both Newsweek and the New YorkTimeswere speculating that McCarthywas aiming for the White House in 1956.83Fearing for
the nation, formerPresidentTrumanmade a nationallytelevised speech in
75.
76.
STEWARTALSOP,THE CENTER:PEOPLEAND POWERIN POLITICAL
WASHINGTON8 (1968).
WILLIAMS. WHITE, CITADEL:THE STORYOF THEU.S. SENATE258 (1956); GRIFFITH,supra
note 7, at 210-11.
77. See STONE,supra note 13, at 382.
78. REEVES,
supra note 7, at 480.
79. Id.
80. See id. at 482-83; CAUTE,supra note 7, at 321-24 (backgroundon VOA investigation).
81. REEVES,
supra note 7, at 485.
82. Id.; see also MARTIN MERSON, THE PRIVATEDIARY OF A PUBLIC SERVANT 14-16 (1955);
JAMESA. WECHSLER,THE AGE OF SUSPICION264 (1953); New Hearings Set on "Red"Book Issue,
N.Y. TIMES,June 24, 1953, at 16; Wayne Phillips, Harassing Feared by "Voice"Suicide, N.Y. TIMES,
Mar. 7, 1953, at 10; C. P. Trussell, VoiceMustDrop WorksofLeftists, N.Y. TIMES,Feb. 20, 1953, at 9.
83. REEVES,supra note 7, at 493-94.
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
LAWREVIEW
CALIFORNIA
1400
[Vol.93:1387
which he accused "this Administration"of "shameful demagoguery"and
defined McCarthyismas a "horriblecancer [that] is eating at the vitals of
America."84Even Republicans began to grow nervous. Eisenhower's
brotherpublicly described McCarthyas "the most dangerousmenace" to
the nation."85
In the meantime, the long shadow of the House Un-American
Activities Committee fell across our campuses and our culture. Robert
MaynardHutchins, the great education scholar and university administrator, observed at the time that "[t]he entireteachingprofession of the U.S. is
In hearings before HUAC, a parade of prominentacnow intimidated."86
tors and movie producerstestified that Hollywood had been infected by unAmericanpropaganda.Red-huntersdemanded,and got, the blacklisting of
such writers as Dorothy Parker, Dalton Trumbo, James Thurber, and
Arthur Miller."sLike the Puritans in the Salem witch trials, HUAC demandedpublic denunciation,purgation,humiliation,and betrayal.88
Governmentat all levels hunted down "disloyal"individuals and denounced them. Anyone so stigmatizedbecame a liability to his friends and
an outcast to society. More than 11,000 people were fired from federal,
state, local, or privateemploymentfor alleged disloyalty. More than a hundred were prosecutedunderthe Smith Act because of their involvement in
the Communist Party. One hundred thirty-five were prosecuted for contempt of Congress because they refused to cooperatewith HUAC. Fear of
ideological contaminationswept the nation. As HarryTrumanhad warned,
"scaremongers"had generated such a wave of fear that their attacks on
civil libertiesnow went "almostunchallenged."89
A reporterin Madison, Wisconsin, circulateda petition asking people
to supportthe preamble to the Declaration of Independence.Ninety-nine
percent of them refused to sign. Columnist Drew Pearson noted that this
was unprecedentedand diagnosed it as "a disease of fear."90The "Silent
Generation"of the 1950s was afflicted with this disease. As historian
Henry Steele Commagerobserved, the political repressionof this era bred
a stifling "conformity"and an "unquestioningacceptance of... America
84.
Textof Address by TrumanExplaining to Nation His Actions in the WhiteCase, N.Y. TIMES,
Nov. 17, 1953,at 26.
85. President's BrotherScores McCarthy,N.Y. TIMES,
July 25, 1953, at 6; see William S. White,
Joe McCarthy. TheMan with the Power, LOOK,June 16, 1953, at 30.
86. CAUTE,supra note 7, at 429.
87. See GOLDSTEIN,
FROM
EXCERPTS
supra note 7, at 307-08; THIRTYYEARSOF TREASON:
at 110-244
HEARINGS BEFORE THE HOUSE COMMITTEE ON UN-AMERICAN ACTIVITIES, 1938-I968,
(Eric Bentley ed., 1971). See generally CAUTE,supra note 7, at 487-520.
88. See STONE,supra note 13, at 352-74.
89. Text of President's Speech at Dedication of New Legion Building, WASH.POST,Aug. 15,
1951, at 7; see also REEVES,
supra note 7, at 379-80.
90. See STONE,
supranote 13, at 419. Thereis good evidenceto suggestthat the public's
confidencein democratic
valuesandfreedomof expressiondeteriorated
significantlyduringthis era.
See JOHNLORDO'BRIAN, NATIONALSECURITYAND INDIVIDUALFREEDOM
69-70 (1955).
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
2005]
FREE SPEECHIN THEGE OF MCCARTHY
1401
as a finished product,perfect and complete."91Reflecting on these years,
Norman Mailer observed that the nation had suffered "from a collective
failureof nerve."92
In our national consciousness, the indelible symbol of this era was
Joseph McCarthy. Things did not end well for him, however. President
Eisenhower,like so many others, steered clear of McCarthy.As he told his
friends, he refused to "get into the gutter with that guy."93But when
McCarthyattackedthe former general's Army in a series of highly publicize investigations to expose alleged Communist infiltrationof the military, he went too far even for Eisenhower. During the course of those
hearings, he interrogated General Ralph Zwicker, a battlefield hero of
World War II, about a formerArmy dentistwho had ties to the Communist
Party before joining the military.94McCarthyridiculed Zwicker, contemptuously declaring that he was unfit "to wear that uniform" and that he
lacked "the brains of a 5-year-old."95During McCarthy'seffort to humiliate the Army, the tide began to turn againsthim.
Ironically, the instrumentsof McCarthy's destructionwere his own
lieutenants, David Schine and Roy Cohn, key members of his congressional staff.96Schine had been draftedinto the Army.97Cohn, acting out the
arroganceof McCarthy'sunrestrainedpower, orderedSchine's commander
to grant him privileged treatment.98The uproar that followed led to the
Army-McCarthyhearings. Although the issue in the hearings was technically whether Cohn and McCarthyhad attemptedto intimidate Schine's
commander,no one had any doubtthatthe real issue was whetherthe hearings would bring McCarthy down. Knowing this would be the climactic
confrontation,SenatorLyndon Johnson arrangedfor every moment of the
hearings to be televised in the hope that, given enough rope, McCarthy
would hang himself.99It seemed that every eye in Americawas locked onto
the unfolding drama.
91. GOLDSTEIN, supra note 7, at 383-84.
HISTORY
92. Norman Mailer, The WhiteNegro, excerpted in THENEWLEFT:A DOCUMENTARY
10 (Massimo Teodori ed., 1969).
PENNSYLVANIA
93. REEVES, supra note 7, at 474; WALTER JOHNSON,
I6oo
AVENUE: PRESIDENTS AND THE PEOPLE, 1929-1959, at 292 (1960).
94. Communist Infiltration in the Army.:Hearings Before the Permanent Subcomm. on
Investigations of the Comm. on Gov't Operations, 83d Cong. 147-53 (1953) [hereinafterInfiltration
Hearings]. The dentist, Irving Peress, had lied on his army applicationabout whetherhe had ever been
a member of the Communist Party. The Army loyalty screeners had failed to catch the lie. See
HERMAN, supra note 2, at 247-50.
95. InfiltrationHearings, supra note 94, at 153.
96. BENNETT,
supra note 34, at 305.
97. Id.
98. See id.; REEVES, supra note 7, at 536-37.
99. DALLEK, supra note 73, at 188-89; see also HERMAN, supra note 2, at 256.
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
1402
LAWREVIEW
CALIFORNIA
[Vol.93:1387
McCarthymade a spectacle of himself. As Roy Cohn later recalled,
"With his easily eruptingtemper, his menacing monotone, his unsmiling
mien, and his perpetual 5-o'clock shadow," McCarthy was "the perfect
stock villain."'00Seated across from McCarthywas Joseph Welch, a sixtythree-year-oldBoston lawyer who had been retainedto representthe Army.
Welch had a keen mind, a folksy manner, and incisive instincts. He had
originally intendedto bring with him to Washingtontwo young associates,
Jim St. Clair, who twenty years later would representPresident Richard
Nixon in the Watergateinvestigation, and Fred Fisher. But when Fisher
informed Welch that as a law student he had belonged to the radical
National Lawyers Guild, Welch sent him back to Boston. He did not want
anythingto divertattentionfrom the task at hand."'
The critical moment of the hearings occurredduring Welch's crossexamination of Roy Cohn. In a voice dripping with malevolence,
McCarthyinterruptedWelsh and announcedto the world that Welch "has
in his law firm a young man named Fisher... who has been for a number
of years a member of an organization which was named, oh, years and
years ago, as the legal bulwark of the Communist Party."'02Welch's response, seen live by millions on television, was withering:"Until this
moment, Senator, I think I never really gaged [sic] your cruelty or your
recklessness.... Let us not assassinatethis lad further,Senator.You have
done enough. Have you no sense of decency, sir, at long last? Have you
left no sense of decency?""'3Welch then rose and walked from the room,
which exploded in applause.04 It was the moment that finally and indelibly
exposed Joseph McCarthyfor what he was: a bully willing to tear apart
anyone who triedto stop his crusade."05
In the weeks after the hearings, his popularity plummeted.106The
ChristianScience Monitorpointedly observed that despite all of his investigations and accusations, McCarthyhad not producedthe conviction of a
100. Roy COHN, MCCARTHY208 (1968).
101. See REEVES, supra note 7, at 588-89.
102. Special Senate Investigation on Charges and CounterchargesInvolving:Secretary of the
ArmyRobert T. Stevens, John G. Adams, H. Struve Hensel and Senator Joe McCarthy,Roy M. Cohn,
and Francis P. Carr: Hearing Before the Special Subcomm.on Investigationsof the Comm.On Gov't
Operations,83d Cong. 2426-27 (1954) [hereinafterArmy-McCarthyHearings].
103. Id. at 2428-30; see also W. H. Lawrence,Exchange Bitter: Counsel is Near Tears as Crowd
June 10, 1954, at 1.
ApplaudsHim at Finish, N.Y. TIMES,
104. BENNETT, supra note 34, at 309.
105. McCarthy's decision to raise this issue about Fisher violated an agreement Cohn had made
two days earlierwith Welch. They had agreedthat McCarthywould not mention Fisher's involvement
with the National Lawyers Guild and Welch would not mention Cohn's failure to pass his military
physical. Cohn was horrified when McCarthyblatantly disregardedthis understanding.It has been
suggested that Welch had plotted out this entire scene in advance.
Fisher went on to success, being elected president of the MassachusettsBar Association in 1973.
See BENNETT, supra note 34, at 309; GRIFFITH, supra note 7, at 259-60 n.46; HERMAN, supra note 2, at
275-76; REEVES, supra note 7, at 628-29.
106. See George Gallup, Group of Those Undecided about McCarthy up by 6%, WASH.POST,
Nov. 12, 1954, at 29.
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
2005]
FREE SPEECHIN THEAGE OF MCCARTHY
1403
single spy or uncovered a single Communist working in a classified defense position.'07
On June 11, 1954, a seventy-four-year-oldRepublicansenator,Ralph
Flandersof Vermont, acted in direct defiance of the Republicanleaders by
Before doing so, however,
introducinga resolutionto censureMcCarthy.'08
Flanderswalked up to McCarthyon the Senate floor and personallyhanded
him a writteninvitationto attendthe Senate session at which he would present the resolution. Flanders's resolution charged that McCarthyhad engaged in conduct "unbecominga member of the United States Senate."l09
Even Democrats were uneasy. The resolution risked upsetting the
Senate's longstandingtraditionof "live and let live.""'1Over the next several months, the matter percolated slowly through the Senate process.
Finally, on September 27, 1954, a six-member committee unanimously
recommended that McCarthy be "condemned"-the word had been
changed from "censured"-for "contemptuous"and "reprehensible"conduct."'
McCarthyroaredthat he was the "victim"of a Communistconspiracy
and that the Communist Party "has now extended its tentacles even
After two weeks of harsh debate, the
to... the United States Senate.""112
Senate adoptedthe resolutionby a vote of 67 to 22.113Every Democratwho
was present voted for censure; the Republicans were evenly divided. Six
weeks later, in the 1954 election, the Democrats regained control of both
Houses of Congress, and candidates tied to McCarthy were defeated
throughoutthe nation. Two years later, an abandoned,bitter, and chronically alcoholic Joseph McCarthydied of cirrhosisof the liver at the age of
49.114
McCarthy'srise and fall spanned five inglorious years, but the era of
what we loosely call "McCarthyism"lasted well over a decade. During all
that time, in which tens of thousands of innocent individuals had their
107. Robert M. Hallett, Results of McCarthyInvestigations into CommunistActivities Analyzed,
CHRISTIAN
SCI.MONITOR, Aug. 24, 1954, at 3; see also REEVES,supra note 7, at 639-43 (describing
McCarthy'swaning popularityand assertingthat his investigationsdid not lead to any convictions).
108. See 100 CONG.REC.8032-33 (1954); see also C. P. Trussells, Flanders Moves in Senate to
June 12, 1954, at 1.
Strip McCarthyof Posts, N.Y. TIMES,
109. See 100 CONG.REC. 8032-33 (1954); see also RALPHE. FLANDERS, SENATORFROM
A.
VERMONT
250-68 (1961) (Flanders's account of the events surroundingthe censure); MARGARET
261 (1992);
AMERICA
IN MODERN
FREEDOM
OFEXPRESSION
REVOLUTIONARY
SPARKS:
BLANCHARD,
GRIFFITH,
supranote 7, at 270-77.
110. See GRIFFITH,
supra note 7, at 277 (describingDemocrats' fears about the proposed censure
resolution).
S. REP.No. 83-2508, at
TOSTUDYCENSURE
COMM.
OFTHESELECT
111. See REPORT
CHARGES,
30-31, 60-61 (2d Sess. 1954).
112. 100 CONG.REC.15,953 (1954).
113. 100 CONG.REC.16,392 (1954); see also GRIFFITH,
supra note 7, at 314.
114. See COHN,supra note 100, at 262-64; REEVES,
supra note 7, at xv; STONE,supra note 13, at
90-91.
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
1404
LAWREVIEW
CALIFORNIA
[Vol.93:1387
theircareers,andtheirpersonallives destroyed,mostcivil libreputations,
ertarians,most lawyers,mostpublicofficials,most intellectuals,andmost
others who should have known better, includingthe justices of the
SupremeCourt,ditheredoverwhatto do. Whatmadethispossible?
Certainly,at the heightof the Cold War,a small,highly disciplined
cohort of dedicatedCommunists,workingin secret with agents of the
Soviet Union,soughtto harmthe UnitedStates.We know fromrecently
availableKGBfiles thatthis networkincluded200 to 400 people.I do not
meanto makelightof this dangeror of the perilousstateof the world.But
the dangerthese individualspresentedwas not the subversionof the
Americanpeople.It was the dangerof espionageandsabotage.The appropriateway for a democraticgovernmentto addressthatdangeris not to
broadlystiflepublicdiscourseor fostera climateof repression.It is to focus preciselyon the unlawfulconductandto use appropriate
law enforcementtools to identify,punish,anddeterlawbreakers.
This is the essential
distinctionbetweena freesocietyanda policestate.
Partisanexploitationcausedthe leap froma reasonedfear of espionageandsabotageto an unreasonedfearof differenceanddisloyalty.With
the IronCurtain,the fall of China,the KoreanWar,andthe fearof A- and
H-bombsrainingdownon Americancities,publichysterialurkedjust beneaththe surface.This was a naturalbreedinggroundfor opportunistic
politicians.Foranti-NewDeal Republicans
tryingdesperatelyto clawtheir
way backinto powerin the late 1940sandearly'50s, it was trulythe opportunityof a lifetime.Andtheyseizedit.
As formerAttorneyGeneralFrancisBiddleobservedat the heightof
this era, power in Americahad come to dependon publicopinion.The
struggle for freedom is therefore no longer a struggle against an
Fear,
"oppressivetyrant,"buta struggleagainst"thepeoplethemselves.""'15
Biddle observed,"is an infectionthat spreadsquickly.""'6
During the
McCarthyera,Americanswereexhortedto fearnot only Sovietagentsbut
Andwe respondedto thisexhortation.
"un-Americanism."
We grewfearful
not only aboutour nationalsecuritybut aboutthe subversionof our religious, moral,andnationalvalues,ourmedia,andour educationalsystem.
Fannedby unprincipledpoliticians,this fear of an insidiousenemy led
Americansto fear Americans,to confusepanic with patriotism,and to
blindlyrepressothersin a franticbidto ensureoursecurity.
For fifty years,JosephMcCarthy'snamehas evokedassociationsof
fear, meanness,irresponsibility,and cruelty. He is the quintessential
Americangoblin.Recently,a not-so-subtlecampaignhasbeenlaunchedto
115.
116.
7 (1951).
FRANCIS
BIDDLE,THEFEAROFFREEDOM
Id. at 18-19.
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
2005]
FREE SPEECHIN THEAGE OF MCCARTHY
1405
rehabilitate
McCarthyas a loyal Americanwho did ournationa greatserThis
versionof historyrunsessentiallyas follows:
vice.17
Oncethe UnitedStatesandthe SovietUnionbecamemortalenemies
in the late '40s, thosepublicemployeeswho mightonce have seemedreasonablesecurityrisks could no longerbe trusted.But the Democratsin
chargeof the federalgovernmenthadno stomachfor investigatingfellow
liberalsto determinewhetherthey mightbe closet Communists.Because
the Democratsrefusedto protectthe nation,HUAC,RichardNixon, Joe
hadto do it forthem.
McCarthy,andtheirfellow-traveling
Republicans
To be sure,even the revisionistsconcedethatMcCarthylied,bullied,
abused,andhumiliatedinnocentindividuals.But whatMcCarthycontributed,they argue,was a fearless,stubborn,unyieldinginsistenceon pursuing a profoundly important inquiry in the face of Democratic
obstructionism.
Confronted
by a concertedliberaleffortto sweepunderthe
the
to protectournationalsecurityat a time of
Democratic
failure
carpet
an
essentiallighteningrod. Even if he was
greatperil, McCarthywas
wrongin the details,the argumentgoes, he was rightin thebig things.
Thisis wrong,anddangerouslyso. Thegoal of preservingthenation's
securityfromunlawfulespionage,sabotage,and foreigninfluenceis certainlylegitimate-indeed,compelling-and therewere well-justifiedconcernsaboutthese mattersduringthe ColdWar.But a democracyis about
meansas well as ends.As the SupremeCourthas consistentlyrecognized
in protectingourfundamental
rights,notonlymustthe endsbe compelling,
butthemeansmustbe necessary.It disservesourhistoryto say thatJoseph
meantwell butmerelywentaboutit thewrongway.McCarthy's
McCarthy
normsandthe most essentialvalmethodsviolatedthe most fundamental
ues of the Americanconstitutionalsystem.Thereis simplyno excusing,
defending,or mitigatingthatreality.
WhenI beganthis lecture,I said I had selectedmy topic for several
reasons.Buttherewas anotherI didnot mention.JusticeBrennanhada bit
to do with McCarthyism.Indeed,Brennanloved to boast that the only
was JosephMcCarthyhimself.
senatorwho votedagainsthis confirmation
In the hearingroom that day in 1957, McCarthywonderedscornfully
whether this nominee could "distinguishbetween Americanismand
He explainedthat,afterreadingBrennan'swritingsand
Communism.""8
anunderlying
speeches,he was convincedthatBrennanhad"demonstrated
hostility to congressional attemptsto expose the Communistconspiracy,"
and therefore announced that he would vote against confirmationunless
117.
See, e.g., COULTER,supra note 1, at 118; HERMAN,supra note 2, at 100.
118.
KIM ISAAC EISLER, A JUSTICE FOR ALL: WILLIAM J. BRENNAN,
AMERICA
109 (1993).
THATTRANSFORMED
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
JR., AND THE DECISIONS
1406
LAWREVIEW
CALIFORNIA
[Vol.93:1387
Brennan"is able to persuademe ... that I am not in possession of the true
facts with regardto his views. I shall want to know if it is true that Justice
Brennan, in his public speeches, has referred to congressional
investigations of communism... as 'Salem witch-hunts' and
'inquisitions,' and has accused congressional committees of
'barbarism."''19
Ironically, in his own perverseway, Joseph McCarthymay have been
the only member of the Senate who saw clearly into the heart and mind of
William Brennan,for once Brennanjoined the Court,he was an implacable
foe of the witch hunts. Before Brennan'sconfirmation,the Courthad consistently upheld almost every effort of the government to prosecute, expose, harass, humiliate, blacklist, and persecute members of the
Communist Party and their "fellow travelers."Beginning in June 1957,
however, the Court suddenly shifted gears, and Brennanwas a central figure in shaping the First Amendmentprinciples that reversed the course of
constitutionalhistory. In decisions like Yates,120Watkins,121
Sweezy,122
andSpeiser,126the SupremeCourtbeScales,123Keyishian,124
Elfbrandt,125
gan to dismantle the apparatusand mindset that had so poisoned our national debate. Just as McCarthyhad feared,Justice Brennanwas the pivotal
voice in this process.
What is the relevance of all this for our own time? The terrorist
attacks of September 11, 2001 horrified the American people. Images of
the World Trade Center's collapsing towers left the nation in a profound
state of grief, fear, fury, and uncertainty.Afraid that September11 brought
merely the first of a wave of terroristattacks,Americans expected and, indeed, demandedthattheir governmenttake immediateand decisive steps to
protectthe nation.
Like many previous wartime leaders, the members of the Bush
administrationhave used fear to their political advantageand tarredtheir
opponents as "disloyal." Shortly after September 11, President Bush
warned, "You are either with us or with the terrorists."Although the
Presidentwas referringspecifically to othernations, AttorneyGeneralJohn
Ashcroft went even further,castigating American citizens who challenged
the necessity or constitutionalityof the government's restrictionsof civil
119.
120.
121.
122.
123.
124.
125.
126.
Id.
Yates v. United States, 354 U.S. 298 (1957).
Watkins v. United States, 354 U.S. 178 (1957).
Sweezy v. New Hampshire,354 U.S. 234 (1957).
Scales v. United States, 367 U.S. 203 (1961).
Keyishianv. Boardof Regents, 385 U.S. 589 (1967).
Elfbrandtv. Russell, 384 U.S. 11 (1966).
Speiserv. Randall,357 U.S. 513 (1958).
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
2005]
FREESPEECHIN THEAGEOFMCCARTHY
1407
liberties:"To those who scare peace-loving people with phantoms of lost
liberty, my message is this: Your tactics only aid terrorists,for they erode
our national unity and diminish our resolve. They give ammunition to
America's enemies."'27
In the wake of September11, Americanswere more thanwilling to
accept significant encroachmentson their freedoms in order to forestall
furtherattacks. To reinforce this willingness, the Bush administrationrepeatedly declaredthat the terroristshad taken "advantageof the vulnerability of an open society" and that the governmentthereforeneeded to impose
new restrictionson civil liberties.128
Some of these restrictionswere modest
in scope and addressedserious deficiencies in the nation's intelligence apparatus.Others,however, have proven far more problematic.
The more questionable restrictions include indefinite detention,
with no access to judicial review, of more than a thousandnoncitizenswho
were lawfully in the United States and had not been charged with any
refusal
crime; blanket secrecy concerningthe identity of these detainees;129
to permitmany of these detaineesto communicatewith an attorney;an unprecedented assertion of authority to eavesdrop on constitutionally protected attorney-clientcommunications;30 secret deportationproceedings;
the incarcerationfor more than two years of an American citizen, arrested
on American soil, incommunicado,with no access to a lawyer, solely on
the basis of an executive determinationthat he was an "enemy combatant;""'31
significant new limitations on the scope of the Freedom of
InformationAct;132expanded authorityto conduct undercover infiltration
and surveillanceof political and religious groups;increasedpower to wiretap, engage in electronic eavesdropping,and covertly review Internetand
e-mail communications;new power secretly to review banking, brokerage,
127. Anthony Lewis, Security and Liberty:Preserving the Values of Freedom, in THEWARON
IN AN AGEOFTERRORISM
50 (RichardC. Leone & Greg Anrig, Jr.
OURFREEDOMS:
CIVILLIBERTIES
eds., 2003); Richard C. Leone, The Quiet Republic: The Missing Debate About Civil Liberties After
9/11, in THEWARONOURFREEDOMS,
supra note 127, at 8.
128. Leone, supra note 127, at 5.
129. See Office of the InspectorGeneral, U.S. Dep't of Justice, The September 11 Detainees: A
Review of the Treatmentof Aliens Held on ImmigrationCharges in Connection with the Investigation
of the September11 Attacks(June2, 2003); Dan Eggen & Susan Schmidt, Countof Released Detainees
is Hard to Pin Down, WASH.POST,Nov. 6, 2001, at A10; Danny Hakim, States Are Told To Keep
Detainee InformationSecret, N.Y. TIMES,Apr. 19, 2002, at A14; TamarLewin, Rights Groups Press
for Names of Muslims Held in New Jersey, N.Y. TIMES,Jan. 23, 2002, at A9; KatharineQ. Seelye,
Moscow, SeekingExtradition,Says 3 Detainees Are Russian, N.Y. TIMES,
Apr. 3, 2002, at A13.
130. See 29 C.F.R. s 501.3(d) (2005); George Lardner, Jr., U.S. Will Monitor Call to
Lawyers:Rule on Detainees Called "Terrifying,"WASH.POST,Nov. 9, 2001, at Al.
131. See Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003), rev'd, 124 S. Ct. 2711 (2004); see also
Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) (upholding the executive's declaration that an
individual was an "enemy combatant"),vacated by 124 S. Ct. 2633 (2004) (stating that detainee had
rightto consult with lawyer and contest accusations).
132. See 6 U.S.C. s 122 (2000).
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
1408
LAWREVIEW
CALIFORNIA
[Vol.93:1387
andotherfinancialrecords;andexpandedauthorityto conductclandestine
physicalsearches.133
Thecenterpieceof the Bushadministration's
antiterrorism
strategy
was the USA PATRIOTAct,134
an exceedinglycomplexstatutedraftedby
the JusticeDepartment
andrammedthrougha grief-stricken
Congressonly
six weeksafterSeptember11. AttorneyGeneralAshcroftandotherfederal
officialsaccusedanyonewho questionedthe necessityor constitutionality
of the proposedlegislationof being "soft on terrorism,"and Congress
passedthe Act in an atmosphereof urgencyandalarmthatprecludedserious deliberation.
Indeed,no morethana handfulof membersof Congress
hadeven readthe legislationbeforeit was rushedintolaw.Althoughcivillibertiesorganizations
identifiedseriousflaws in the PATRIOTAct, even
membersof Congressknownas "strongvoices in favorof civil liberties"
failedto object.13
Theresultwas a statutethathas fairlybeencharacterized
as opportunisticand excessive.The PATRIOTAct smuggledinto law severalinvestigativepracticesthathave nothingto do with fightingterrorism,but
that law enforcementofficialshad for years triedunsuccessfullyto persuade Congressto authorize.It failed to requirereasonableexecutivebranchaccountability,
undermined
traditional-andessential-checks and
the fundamental
balances,anddisregarded
principlethatgovernmentintrusions on civil libertiesshouldbe narrowlytailoredto avoid unnecessary
invasionsof constitutional
rights.'36
Perhapsevenmoretroublingthanthe PATRIOTAct was Attorney
GeneralAshcroft'seviscerationof the 1976 Levi Guidelines.After the
FBI's counterintelligence programs against dissident groups
came to light in the 1970s, AttorneyGeneralEdward
(COINTELPROs)
Levi promulgatedstringentguidelinesrestrictingthe FBI's authorityto
See STEPHEN J. SCHULHOFER, THE ENEMY WITHIN: INTELLIGENCE GATHERING, LAW
133.
ENFORCEMENT, AND CIVIL LIBERTIES IN THE WAKE OF SEPTEMBER I I, at 2-3 (2002); Oren Gross,
Chaos and Rules: ShouldResponses To ViolentCrisesAlways Be Constitutional?,112 YALEL.J. 1011,
1017-18 (2003).
134. Uniting and StrengtheningAmerica by Providing AppropriateTools Required to Intercept
and ObstructTerrorism(USA PATRIOT)Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.
135. Leone, supra note 127, at 8; see also NANCY CHANG, SILENCING POLITICALDISSENT:How
POST-SEPTEMBER II ANTI-TERRORISM MEASURES THREATEN OUR CIVIL LIBERTIES 43 (2002); DAVID
COLE & JAMES X. DEMPSEY, TERRORISM AND THE CONSTITUTION: SACRIFICING CIVIL LIBERTIES IN
THENAMEOFNATIONAL
SECURITY
151 (2002). The PATRIOTAct passed the Senate by a vote of 99
to 1. The only senator to vote against the legislation was Russ Feingold, Democrat of Wisconsin.
Thereafter,several other senatorstold him privatelythat they agreedwith him but were afraidto appear
to the public as "soft on terrorism."Timothy Lynch, Breaking the Vicious Cycle: Preserving Our
Liberties While Fighting Terrorism,POL'YANALYSIS
No. 443, June 26, 2002, at 1, 7, available at
Robert E. Pierre, Wisconsin Senator Emerges as a
http://www.catoinstitute.net/pubs/pas/pa443.pdf;
Maverick,WASH.POST,Oct. 27, 2001, at A8. In the House, the vote was 356 to 66.
136. See CHANG, supra note 135, at 43-66; Stephen J. Schulhofer, No Checks, No
Balances: Discarding Bedrock Constitutional Principles, in WAR ON OUR FREEDOMS,supra note 127,
at 74, 76-77. For defenses of the PATRIOTAct, see Orin S. Kerr,InternetSurveillanceLaw after the
USA Patriot Act: TheBig Brother ThatIsn 't, 97 Nw. U. L. REV.607 (2003); Eric Posner & John Yoo,
ThePATRIOTActunderFire, WALLST. J., Dec. 9, 2003, at A26.
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
2005]
FREESPEECHIN THEAGEOFMCCARTHY
1409
investigatepolitical and religious activities. The 1976 guidelines prohibited
the Bureaufrom investigatingany group or individualon the basis of First
Amendment activity, from monitoring any First Amendment activity except in a narrowlytailored effort to enforce the criminal law, and from investigating any organizationengaged in First Amendment activity in the
absence of "specific and articulablefacts"justifying a criminal investigation.137
In the quartercentury after Levi formulatedhis guidelines, two of
his successors, William French Smith and RichardThornburgh,weakened
the guidelines but left their essential core intact.138
On May 30, 2002, however, Attorney General Ashcroft effectively dismantled the Levi guidelines.139Ashcroft expressly authorizedthe FBI to enter any place or attend
any event that is open to the public in orderto gatherinformationthat may
be relevantto criminal activity, thus enabling the FBI once again to monitor a wide range of political and religious activities without any showing
that unlawful conduct might be afoot. According to the New YorkTimes,
the FBI has been busy collecting "extensive information on the tactics,
In a familiarrefrain,
trainingand organizationof antiwardemonstrators."'14
the FBI has explained that its goal is to identify "anarchistsand 'extremist
elements"' and not to monitor"the political speech of law-abidingprotesters."141
Now, it may seem only sensible, as Ashcroft argued in defense of
this change in the guidelines, that FBI agents be able to monitor public
events in the same manner as other members of the public can monitor
such events. But it is not so simple. An individualplanningto attenda political meeting or a rally protestingthe war in Iraqwill be much more hesitant to attend if he knows FBI agents may be taking names. Such
surveillance, whether open or surreptitious,can have a chilling effect on
FirstAmendmentfreedoms.
The Ashcroft guidelines also eliminated the long-standing requirementthat FBI investigationsaffecting political and religious activities
be undertakenwith special care. The new rules authorizedthe FBI, in investigating political and religious organizations, to "use the same
investigative techniquesthey would use when investigatingany other type
of organization,"such as organizedcrime or a terroristcell.142The effect is
137. See STONE,supra note 13, at 496-97.
138. See CHANG,supra note 135, at 32-37.
139. See The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and
Terrorism Enterprise Investigations, ss VI(A)-(B), at 21-23 (2002), at http://www.usdoj.gov/olp/
generalcrimes2.pdf(last visited Mar. 14, 2004); see also Neil A. Lewis, Ashcroft Permits F.B.I. to
MonitorInternetand Public Activities,N.Y. TIMES,
May 31, 2002, at A20.
Nov. 23, 2003, at Al.
140. Eric Lichtblau,F.B.I. ScrutinizesAntiwarRallies, N.Y. TIMES,
141. Id.
142. Departmentof Justice, Fact Sheet, Attorney General's Guidelines:Detecting and Preventing
TerroristAttacks(May 30, 2002), cited in SCHULHOFER,
supra note 133, at 62.
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
1410
LAWREVIEW
CALIFORNIA
[Vol.93:1387
to expose religious and political organizationsto extensive FBI monitoring
without any objective groundsfor suspicion and with much reduced super-
visorycontrol.143
An even more troublingfree-speech issue arising out of the "war"
on terrorismconcerns the Bush administration'sobsession with secrecy.
Overbroad assertions of secrecy in government cripple informed public
discourse. It is impossible for the public responsiblyto engage in political
debate if it is denied access to critical informationabout the actions of its
elected officials. As Senator Daniel Patrick Moynihan once observed,
"secrecy is the ultimate form of regulationbecause the people don't even
know they are being regulated."'44
Excessive secrecy has been a consistent feature of the Bush administration,ranging from its refusal to disclose the names of those it detained after September 11 to its narrowingof the Freedom of Information
Act, from its unprecedentedclosure of deportationproceedingsto its redaction of "sensitive" information from tens of thousands of government
documentsand websites.145
Some measure of secrecy in the interest of national security is, of
course, essential, especially in wartime. But the Bush administration'sobsessive secrecy effectively constrains oversight by both the press and the
public and directly underminesthe vitality of democratic governance. As
the legal scholar Stephen Schulhoferhas noted, one cannot escape the inference that the cloak of secrecy imposed by the Bush administrationhas
"less to do with the war on terrorism"than with its desire "to insulate
executive action from public scrutiny."146
This policy will weaken our democraticinstitutionsand "leave the countryless secure in the long run."147
Although Congress readily acquiesced in the administration'sdemand for the PATRIOT Act, it soon grew more skeptical about further
143. The Levi, Smith, and Thornburghguidelines required senior Justice Departmentapproval
prior to investigating political and religious groups. In announcing the new guidelines, Attorney
General Ashcroft criticized this requirement as "unnecessary procedural red tape." Remarks of
Attorney General John Ashcroft, Attorney General Guidelines (May 30, 2002), available at
http://www.fas.org/irp/news/2002/05/ag053002.html.The Ashcroft guidelines thus decentralize this
decision making, granting much greater independence to the fifty-six local FBI field offices. What
Ashcroft calls red tape, Levi rightlyunderstoodto be essential to governmentaccountability.
144. John Podesta, Need to Know: Governing in Secret, in THEWARON OURFREEDOMS,
supra
note 127, at 227.
145. Id. at 221-25; Leone, supra note 127, at 9; John F. Stacks, Watchdogson a Leash: Closing
Doors on the Media, in THEWARONOURFREEDOMS,
supra note 127, at 237.
146. Schulhofer,supra note 136, at 91; see Leone, supra note 127, at 9; Podesta,supra note 144,
at 221-25; SCHULHOFER,
supra note 133, at 4, 11-13; Stacks, supra note 145, at 237. On the secrecy of
deportationhearings, compare Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) (closed
hearing unconstitutional)with N. Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002)
(closed hearingconstitutional).
147. Podesta,supra note 144, at 225.
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
2005]
FREE SPEECHIN THEAGE OF MCCARTHY
1411
calls to limit civil liberties. When Attorney General Ashcroft announced
his intentionto institutea new program,TerrorismInformationand Prevent
System (TIPS), which would have exhorted citizens to monitor and report
on other citizens, Congress objected, forcing Ashcroft to withdrawthe proposal.148
Congress also blocked funding for the administration's Total
InformationAwareness (TIA) program,which was designed to develop a
vast surveillancesystem and databaseof personaland commercialinformation in orderto detect "suspicious"behaviorpatternsamong Americancitizens. Even leading Republicans balked at this proposal. Senator Charles
Grassley of Iowa, for example, rightly objectedthat TIA posed a "chilling"
threatto civil liberties.149
In January 2003, the Justice Department floated plans for
PATRIOT Act II, entitled the Domestic Security Enhancement Act of
2003. This legislation would have reducedjudicial oversight over surveillance, created a DNA database resting on unchecked executive
"suspicion,"lifted existing judicial restraintson local police's spying on
religious and political organizations,15authorizedthe federal government
to obtain library and credit-cardrecords without a judicial warrant,and
permittedthe federal governmentto keep secret the identity of anyone detained in a terror investigation-including American citizens. PATRIOT
Act II met with howls of public, press, and bipartisancongressionalopposition, and the administrationburiedthe proposal,at least for the moment.
Thus, althoughthe initial response of Congress and the public was
to supportthe administration'sdemands for additionalpowers, once fears
had settled, the response was more clear-eyed and more resistantto further
expansions of executive authority."1As Jeffrey Rosen wrote in May 2003,
"a principled,bipartisanlibertarianconstituency"emergedthat was willing
to defend civil liberties "even in the face of popularfears" and aggressive
executive plans to expandits power.152
148. Among the Republicans who opposed Operation TIPS was House Majority Leader Dick
Armey of Texas. See Jackie Koszczuk, AshcroftDrawing Criticismfrom Both Sides of the Aisle, CONG.
Q. WKLY.,Sept. 7, 2002, at 2286.
149. Leone, supra note 127, at 9-10; see also Kathleen M. Sullivan, Under a Watchful
supra note 127, at 128, 132-33;
Eye: Incursions on Personal Privacy, in THEWARONOURFREEDOMS,
JonathanRiehl, LawmakersLikely to LimitNew High-TechEavesdropping,CONG.Q. WKLY.,Feb. 15,
2003, at 406.
150. See Alliance to End Repressionv. City of Chicago, 237 F.3d 799 (7th Cir. 2001).
151. A number of Republicans, including Senators Larry Craig and Mike Crapo of Idaho, Lisa
Murkowski of Alaska, and John Sununu of New Hampshire, are among those who condemned
Jan. 22,
PATRIOTAct II. See Jesse J. Holland, Bush Aims to Expand USA Patriot Act, GUARDIAN,
2004. For the text of the proposed legislation, see http://www.dailyrotten.com/sourcedocs/patriot2draft.html.
152. Jeffrey Rosen, Why Congress is Brave, and the Courts Aren't: Privacy Pleas, NEW
REPUBLIC, May 26, 2003, at 19; see also Samuel Issacharoff & Richard H. Pildes, Between Civil
Libertarianism and Executive Unilateralism:An Institutional Process Approach to Rights During
Wartime,5 THEORETICAL INQUIRIES IN LAW 1, 45 (2004).
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions
1412
LAWREVIEW
CALIFORNIA
[Vol.93:1387
Moreover,in its decisionsin June2004 concerningYaserHamdi,
Jose Padilla,and the detaineesat Guantanamo
Bay, the SupremeCourt
assertionsof the Bush adtook a strongstandagainstthe unprecedented
ministration
concerningits authorityto detainbothAmericanscitizensand
noncitizenswithoutanyindependent
judicialreview.153
tale"?Most basiis
the
relevance
of my "cautionary
What,then,
hard
cases
make
bad
it
down
to
this.
Just
as
law, hardtimes
cally, comes
makebadjudgments.It is our responsibilityas citizens,lawyers,elected
officials,andjudgesto resistthosebadjudgments,to maintaina clear-eyed
confidencein ournationalvalues,andto havethe courageto supportthose
valueswhenoursupportmatters.JusticeBrennanwouldexpectno less.
153. See Hamdiv. Rumsfeld, 124 S. Ct. 2633 (2004); Rumsfeldv. Padilla, 124 S. Ct. 2711 (2004);
Rasul v. Bush, 124 S. Ct. 2686 (2004) (GuantanamoBay case).
This content downloaded on Fri, 4 Jan 2013 14:38:46 PM
All use subject to JSTOR Terms and Conditions