Tuesday, January 20, 2015

The Cold War and the First Amendment

The Cold War Era, roughly 1917 to 1990, challenged the United States on two different levels. First, the physical safety and freedom of U.S. citizens were in danger; second, the U.S. had to counter these dangers without violating its own principles of freedom of speech and freedom of the press.

Correspondingly, the word ‘communism’ has many meanings, two of which reflect this Cold War dilemma. On the one hand, communism is an idea which citizens should be free to discuss, research, and even advocate. On the other hand, the word ‘communism’ referred during these years to an international conspiracy to kill U.S. citizens or subjugate them under a dictatorship - a conspiracy equipped both with the resources of the powerful Soviet military and with a sophisticated and extensive espionage network within the United States.

Regarding communism as an idea, the books of Karl Marx were never banned in the United States. Citizens were free to print, sell, buy, own, read, discuss, and even publicly endorse his books. Marx’s books were read and taught in universities, and citizens could, and did, form private groups to discuss them. This was America’s attempt to live up to its ideals of freedom of expression, freedom of thought, freedom of association, and freedom of assembly.

Regarding communism as an international conspiracy to overthrow the U.S. government and oppress Americans under a totalitarian regime, some historians argue that the United States was slow to develop an effective response. Already after the revolution of 1917, and increasingly after the communist victory in 1920 in the Russian civil war, Soviet intelligence organizations were creating a network of agents within the United States. By the 1930s, this network had infiltrated the federal government to the extent that one agent, Alger Hiss, had risen within the State Department to be a top advisor to FDR, consulting directly with the president.

A long list of such agents, verified by Soviet records made public after the 1990 fall of the communist government, was able both to relay confidential information to Moscow, and to influence policy decisions made in the United States. Many were native-born U.S. citizens, who willing chose to serve the communist conspiracy. One historian - William F. Buckley, Jr. - wrote in 1954:

Certainly one of the most effective arms of Soviet imperialism has been the strategically placed native of the free world who, for whatever perverse reason, has determined to serve the Communist cause.

One tactic used by the Soviets was the formation of a “popular front.” Using this tactic, communist agents would make alliances with already established social or political groups within the United States, usually groups whose views were similar to, but not the same as, communism. These alliances were formed for the sake of expediency - the communists were willing to befriend a group today and attack it tomorrow.

The “popular front” allowed communist agents to gain support and help from individuals and groups who were in some way sympathetic to aspects of the communist cause, but who were not communists themselves. The communists played on their naivety and on their sympathy for what seemed to be reasonable causes.

Thus a number of social and cultural organizations, large and small, scattered geographically across the country, began to function as communist fronts. At one point in the 1950s, there were over a hundred such fronts, including groups like the United May Day Committee, the Quad City Committee for Peace, Palo Alto Peace Club, Michigan School of Social Science, Industrial Workers of the World, Chopin Cultural Center, and many others.

Some of these fronts, and the individuals in them, helped unwittingly, and were known as ‘dupes.’ Others were aware that they were directly aiding Soviet agencies, and were sometimes called ‘fellow travelers.’

The Soviets recruited opinion makers in the media as part of this tactic. Famous journalists like I.F. Stone, known as “Izzy,” were on the payroll of the Soviet intelligence agencies like the NKGB and the NKVD (predecessors to the KGB). Stone wrote for the New York Post newspaper and Nation magazine from 1933 to 1946. Others, like New York Times reporter Walter Duranty, were not documented to have received payment from the Soviets, but aided them based on personal conviction.

A small but active group of academics and fine arts professionals constituted another front. Many of them were drawn to the Communist Party (CPUSA) because it seemed to espouse noble humanitarian ideals. This ‘front’ group was not a formal organization, but more like a social fad. Some were, and some were not, aware of internal CPUSA documents which set a “violent revolution” as the party’s goal. In 1954, Congress passed the Communist Control Act, which came close to making the party illegal, but stopped short of actually doing that. The nation valued the freedom of ideas too much to make a party illegal. The party’s espionage and sabotage activities were still, however, outlawed.

Surveying Congress’s efforts to reduce the Soviet threat, Buckley writes:

As far back as the twenties, many Americans were aware that Communism was more than a proposal for political change which would take its chances “in the marketplace of ideas.” Communism, it was recognized, was a relentless political-military conspiracy. A Committee of the House of Representatives was soon instructed to investigate the Communist conspiracy in the United States. The Committee operated in the increasingly difficult climate of the Popular Front, when great numbers of Western intellectuals had entered into an enthusiastic concordat with Stalin. Slowly and haphazardly our lawmakers sought to adjust our statute books to the realities of the Communist menace.

Congress passed various bits of legislation to deal with the danger. When it became clear that paid Soviet agents like Hiss had worked their way into jobs which gave them one-on-one access to the president in private conversations, the legislation focused on how to screen federal employees, especially those shaping policy or having access to sensitive military information.

The difficult aspect of such legislation was ensuring that civil rights would not be injured in the course of - paradoxically - trying to preserve the society which is based on them and which values them. Buckley describes Congress’s actions:

In 1938, the McCormack Act ordered all agents of foreign governments to register with the Department of Justice. The Hatch Act of 1939 excluded from Federal employment members of any organization that advocates the forcible overthrow of our constitutional form of government. The Smith Act of 1940 forbade Americans to conspire to teach or advocate the overthrow of the U.S. government by force or violence.

Of these laws, the Smith Act caused the most concern. Did it injure First Amendment rights to freedom of expression? It not only outlawed the violent overthrow of the government, but outlawed any action to “teach, advocate, or encourage” such violence. It made liable anyone who “prints, publishes, sells, circulates, or displays” material which teaches, advocates, or encourages this violence. This is a nuanced question for any free society: how do we protect freedom without destroying it in the process of protecting it?

Other actions taken by federal agencies, by contrast, clearly did not injure civil rights. It is noncontroversial that those hired to shape policy or have access to military intelligence must be vetted. National security took a step toward the safety of ordinary citizens by doing this, as Buckley notes:

In 1942, surprisingly, an alert Civil Service Commission enunciated loyalty criteria which were to govern federal agencies in determining whom to hire. It was stipulated that, in case of “reasonable doubt” as to his loyalty, an applicant must be regarded as unemployable.

Writing in 1954, Buckley could not have guessed the details and surprises that waited in the remaining thirty-five years of the Cold War. While he focused on legislative means to a victory, and some of his contemporaries focused on military means to the same, it would, in the end, be an economic struggle, and on that field, the Soviets would lose, when the Reagan administration discovered that it could trigger an economic collapse within the Soviet Union by causing it to spend ever-increasing amounts in an effort to keep pace with U.S. military developments.

In any case, Buckley was looking to future legislative actions to neutralize the Soviet threat:

These, of course, were primitive and inadequate tools for dealing with the kind of penetration against which our best students of Communism were warning us. It is best to think of them as the first efforts of the American people, acting through their representatives, to master by fiat a problem that, in the long run, would require much more, perhaps even a Constitutional Amendment.

Buckley was of the opinion that the Smith Act, introduced by Democrat Congressman Howard W. Smith, and signed into law by FDR, did constitute injury to the First Amendment. The remedy, argued Buckley, was perhaps another constitutional amendment. Left to stand as it was, the Smith Act would eventually reveal itself as part of an internal contradiction within our legal system.

The Smith Act, in our opinion, in effect did amend the Constitution, the circumlocutions of the slim majority of the Supreme Court that upheld it notwithstanding. The First Amendment states that “Congress shall make no law … abridging the freedom of speech.” It does not go on to say that certain social exigencies, as for example war, or a foreign conspiracy, invalidate this explicit limitation of congressional competence.

The complexity of debate and legislation in response to Soviet espionage and sabotage inside the United States reflects the complexity which will arise any time a free society needs to defend its freedom. Defense commandeers resources, yet liberty is the safety of knowing that one’s resources will not be commandeered.

The Cold War had to be won, and won in a way which minimized any injury to liberty. If the victory had done great damage to freedom, it would have been a defeat in disguise and no victory at all.