Civil Liberties and the Bill of Rights
Views about granting civil rights to internal “enemies” have varied in the U.S. based on prevailing political currents. Where civil rights have been more restricted, the prevailing conditions were driven by fear and arguably the ambitions of political leaders. This led to laws and court decisions that restricted advocacy for unpopular political views, and disrupted the lives of thousands of American citizens who held them.
This WILL Radio discussion from 1950 centers on the perceived threat of a Communist conspiracy to undermine and ultimately overthrow the U.S. government. In 1940 Congress had passed the Smith Act in response to fears about “fifth column” agents from foreign powers at the outbreak of WWII. In 1950 prosecutors used the Smith Act to charge 11 leaders of the Communist Party USA with advocating the violent overthrow of the government.
Panelists consider how this conviction, and the pending appeals, might square with the rights of free speech and assembly guaranteed by the U.S. Bill of Rights. They also consider how the McCarren Act could impact the fate of the communist leaders and the general “crisis” posed by communism. They also briefly considered how the internment of Japanese-Americans during WWII compared with restrictions on the civil liberties of communists in the 1950s.
The panelists include Quincy Howe, a noted CBS and ABC news analyst and historian who had formerly served as director of the American Civil Liberties Union, and Royden Dangerfield, director of the University of Illinois Institute of Government and Public Affairs, who formerly had run-ins with “red-baiters” in his previous position at the University of Oklahoma. They seems to approach the topic methodically, yet carefully, as if splitting the distance between an absolute view of civil liberties and the anti-Communist political currents that were growing stronger in every aspect of American life. Their conversation represents a fascinating snapshot of the fears and tensions of the time, and the compromises to core American principles made in the name of national security.
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A lot of people are wondering these days why we let communists have any rights in this country at all. Communists have proclaimed their hostility to the United States, its Constitution and everything it stands for. They don’t permit any of the liberties they demand for themselves. Yet if we’re going to deny the communists their rights, how are we going to keep our tempers and keep our heads in this kind of situation?
Today three gentleman well informed on public affairs. Look for a partial answer and a discussion of the Bill of Rights. Members of our panel are Quincy Howe, W I L L noted news analyst and author of A World History of Our Own Time and Royden Dangerfield, director of the Institute of Government and Public Affairs at the University of Illinois. Our moderator. W I L L news director Dan Brown.
This discussion of the first ten amendments to our national constitution is certainly most timely and timely in two different ways. And at this time in the sense that you indicated in your opening comments that there is a great temptation to forfeit our rights in the belief that it will help us to weather through this current international crisis. And in a second sense the discussion this afternoon is timely because December 15th is the anniversary of the ratification of the Bill of Rights. The Bill of Rights was ratified in 1791 one hundred fifty nine years ago or today and many of our minds it seems to me to be a Bill of Rights is a phrase that seems almost
sacred and it’s hard for us to realize who was once wrangle over justice in controversial legislation is today as Thomas Jefferson thought the Bill of Rights was tremendously important. But his political rival Alexander Hamilton scoffed at the amendments as being unnecessary. Or this afternoon we’re not going to dwell on the historical aspects because we want Mr. Howe and Mr. Dangerfield to discuss what these amendments mean to us today.
So I’m going to start the ball rolling by reading the First Amendment.
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. On this first amendment as the one that I’m sure is referred to more than all others by the average person. Well how does that fit into the present crisis as you were indicating at the beginning of the broadcast Mr. Howe?
Just how much free speech should a communist have?
According to the Constitution and according to my own opinion the communists should of course have exactly the same rights of free speech as anybody else.
That is he should have the right of free speech until he becomes a clear and present danger.
Now Communists are not the only ones who can become clear and present dangers in the right of free speech does not permit a person to shout fire in a crowded theater. That’s an old way of illustrating it but there should be no particular restrictions applied against communists because they’re communist or against communists merely for talking. You can put restrictions against communists for other reasons but not merely for what they say. Of course they’re subject to all the usual laws of slander and libel and so on. But these recent trials that the 11 communist leaders have been going through have raised this question of
free speech under the so-called Smith Act which as I understand it that forbids anyone to advocate violence. It’s not merely forbidding the practice of violence but the advocacy of violence. And some people feel that this Smith Act is unconstitutional because it forbids advocacy is that right.
Mr. Dangerfield? The Smith Act goes one step further too, it forbids conspiracy to advocate or to teach violence.
And it was on this basis that the communist leaders were convicted.
Now the appeal to the Supreme Court raises the question you pointed. The convicted communist leaders have appealed to the court on the grounds that the Smith Act under which they were convicted is unconstitutional because it is a breach of the first amendment. They also appealed on the basis of procedure. The procedure of the court. The claim against the Smith Act is that it violated the injunction against Congress enacting a law abridging the right to freedom of speech and of the press and of assembly and the court has before it then clearly the very question you posed as to
whether or not this Smith Act goes beyond the necessary steps to preserve a state against conspiracy to overthrow it or whether the Smith Act violates the First Amendment by prohibiting freedom of assembly by prohibiting freedom of speech by prohibiting freedom of teaching. Well in view of all this agitation and all the feeling about communists don’t you think it should be pointed out that even though it perhaps doesn’t bear directly on the bill of rights that there are other ways in which the communists can be brought to book other than the question of free speech.
There are other things that they could be tripped up on like being the agents of a foreign power that kind of thing, there are points on which the communist conspiracy which certainly exists can be checked without any invasion of rights under the Constitution.
And of course this is the one thing it is attempted under the McCarren bill, the recently enacted
Anti Subversive Act.
Here, the charges or the way it is laid open for the government to appeal to a board created by the act, to rule that the communist party constitutes an agent of a foreign government and the communist leaders are agents of foreign governments requiring registration and criminal prosecution.
If that’s the action of those agents constitutes a conspiracy or constitutes espionage or constitutes anything against the safety of the state.
Well then as far as the communists are concerned than the McCarren act would be a more constitutional way of hampering them than the Smith Act. There are other shortcomings in the McCarren Act which are not relevant here I think. But. But as far as the constitutional rights of Communists is concerned those are not particularly attacked by the McCarren of course.
They might be by the Smith Act. They have been attacked by the Communists is unconstitutional too.
So now must be pointed out. I think that that liberty is not license and that rights are relative and they are not absolute. And the first amendment is not an absolute. And when you get down to some of the other amendments they very clearly are not absolutes. And the one fundamental right that a government has is the right to exist and to protect itself against attack. And whether you have a bill of rights or whether you don’t the government must still have that power. One of the main purposes of government is self preservation. And another main purpose of government is to prevent the safety of all being jeopardized by a
few. And if the granting to communists of specific rights jeopardizes the many or jeopardizes the state, then I think the court has to rule that the First Amendment does not protect them. This is a question of fact.
Well then there’s the other way. Although you can also turn that the other way around and say that that even though there may be a lot of reason to crack down on the Communists that in cracking down on the Communists who may deserve very little sympathy of any kind, you may nevertheless open still greater evils than the one you are attempting to cure. There is also that point of view that you may be opening the door to the persecution and denial of rights to a whole lot of other groups and that on balance the relatively small amount of damage that the Communists do is far outweighed by
the good things that other people do who might suffer from this measure directed solely against Communists.
Oh I agree with you. And that is why I think you have to be very cautious how far you condemn the Smith Act and how far you support it. It is a borderline case and it’s one that has to be weighed. And you create a nervous situation whenever you demand that any group be shut up.
Such a man as Henry Wallace undoubtedly has run into so much trouble in recent years. Here is a man who was Vice-President the United States and certainly respected by a larger percent of the population at one time. Who when he took up certain ideas were not popular with a majority ran into difficulty after difficulty.
What can we do to protect men like Wallace who undoubtedly was acting in all sincerity.
I like to tie that with the first amendment if I might. Just for clarification on the wording of the First Amendment.
Congress shall make no law. Congress did not make a law limiting
Henry Wallace’s right to make a speech. What you had were individuals either acting as individuals or acting collectively as a group
take action to prevent freedom of speech.
Now again the First Amendment is a negative. It’s an injunction against Congress. Congress can not do something but it doesn’t say that Congress must take action to protect Henry Wallace. I want to raise that question now from a point of view of democracy I think is just as bad that private groups suppress Henry Wallace as the Congress does. But the First Amendment does not cover that situation. Regardless of your personal convictions,
we are now interpreting one clause in the First Amendment true. I’d like to swing on to another aspect here of the First Amendment. I can already see what part of your answer is going to be Mr. Dangerfield. I think that some of these clauses are so closely interwoven that to me at least they seem almost inseparable. Take the case of a minority religious group. You run into problems there are freedom of speech freedom of religion and the right to hold meetings and is hard to separate one from the other. For instance here is a minority religious group that is opposed to military service or perhaps in a given community a group of young war veterans very much resent that group meeting in
So the local authorities perhaps sympathetic to the veterans will deny the religious group the right to use the town park or perhaps some civic auditorium. Well Mr. Howe, you’re I think a long time member and director of the Civil Liberties Union. What’s your general position about this area?
Well I think that you should always allow these groups to have their right to talk.
There are of course situations where you just are bound to have provocation. It isn’t just a question of clear and present danger I think you might have with a communist. It’s not a question of insincerity as with them.
But take for instance people like these Jehovah Witnesses people. With the most utmost sincerity they will go around insulting other people’s religion, decrying other people’s patriotism and you just cannot expect human beings to just sit and take it when things like that are said about things about beliefs that are just as closely held. These Jehovah’s Witnesses I suppose to a certain extent seek martyrdom for its own sake and not for some ulterior purpose the
way the communists do and therefore one has a little more inclination to defend them on the grounds of principle. But I must say, I’m not speaking in the Civil Liberties Union at all, that there are occasions when if a man comes with a phonograph to play an anti-Catholic record to somebody in their house and begins to move in on the living room with the phonograph and play this record. Well I don’t think the I don’t think any amendment of the Constitution covers him.
No there is a general rule I think that the exercise of any right must be such as not to impair the rights of others. And I think you can’t by claiming the right of free speech or the right of assembly or the right to as you pointed out playing obnoxious records.
You can’t claim that right.
If at the same time you impair the rights of others the right to peace quiet and order the right to be secure in his own religion. And the right to respect their own religion.
That would be like giving the right to make anti-Semitic speeches and the kind of thing that went on in Hitler’s Germany just provoking the worst passions in people. I want to turn now to another angle of this first amendment.
We have entirely neglected freedom of the press and certainly Mr. Howe you and I in the school of journalism can’t let that slide by entirely unnoticed.
As far as we’re concerned a milestone and freedom of press is the famous Peter Singer trial. And here was an obscure printer who dared to print uncomplimentary things about the governor of the colony.
Well no I think some people today feel like the press may have entirely too much freedom. Mr. Howe you and I may be biased so let’s let Mr. Dangerfield who is not in journalism tell us what he thinks. Do you think we have too much freedom of press?
Oh I think no we haven’t. We do not have too much freedom in the press.
But I think we have too much license of the press.
I think every newspaper editor has the right to be a fool.
But I think that he abuses that right and makes a license of it in many cases.
In short what I’m saying is that the press fails so far as I can see it as an outsider and that it does not accept full responsibility for what it says.
If a newspaper misinterprets, misquotes, and by misquoting does damage there isn’t any adequate relief for it. The law of libel does not apply.
Libel has to…you have to tie with it some intent. You have to tie with some one to monetary damage or punitive damage you have to be able to assess it.
And I think there is a lack of responsibility on newspaper people who interpret correctly honestly and squarely and more carefully because I think most of the mistakes of the newspaper are mistakes. There are errors of judgment or lack of effort and not malfeasances. I think Mr. Howe and I will go along with you that we certainly are very strongly convinced that responsibility is a keynote.
We spent a lion’s share of our discussion here on the First Amendment and rightfully so because I think that those aspects freedom religion of speech press and assembly are the things that all of us are very much concerned in but we do want to spend time briefly on the others.
So may I read Amendment 2: A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. And passing on to amendment three no soldier shall in time of peace be quartered in any house without the consent of the owner nor in time of war, but in a manner to be prescribed by law. I think gentlemen you would agree with me that that had great historical importance because when these colonies had bitter memories of days back in England when the crown but disarm a large part of the population and quarter soldiers in the homes the people in the
colonies had unpleasant memories of that prior to the revolution.
While may we pass on then to the fourth amendment which we’ll want to spend a minute on: The right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and no warrant shall issue but upon probable cause supported by Oath or affirmation and particularly describing the places to be searched and the persons or things to be seized. That swings us back into the old saying A man’s home is his castle and we’ve had a recent news story on the Judith Coplon trial.
Tell us a bit about that Mr. Dangerfield.
Well the Second Circuit Court of Appeals recently ordered a new trial for Judith Copeland thereby setting aside the verdict for the Dictrict Court. The Appellate Court held that Ms. Coplon’s arrest without a warrant was illegal. It also objected to the wiretapping evidence produced by the FBI.
And the court could not hold that the FBI might not be authorized to make an arrest without a warrant but it said that it hadn’t been authorized and rather it suggested that maybe under the present circumstances it might be wise to authorize arrest on a more liberal basis in certain types of cases but that the FBI hadn’t been so authorized. The court went so far as to suggest that perhaps the FBI’s part in this regard might be enlarged. The Supreme Court has recognized situations in which the police may legitimately make search and seizure without a warrant.
If it is known or thought probable that a person guilty of a felony or a breach of the peace is taking refuge in a certain house, officers may in pursuit of him go into the house and make his arrest without a warrant. It has been held that if search to be made of an automobile boat plane or other vehicle that may escape from the jurisdiction of the arresting officer, that search may be had without a warrant. Now this was involved in the Coplon case. The FBI claim that they arrested her without a warrant because she was going to flee the country. The court said that the government had not
proved that case and it suggested that in a second trial evidence might be produced to prove it. So the Coplon case is not a clear case of outlawing an action because the FBI did something that it couldn’t under the Constitution be authorized to do. But really that it did something that it hadn’t been authorized to do.
Well they can rest secure in the knowledge that here in America is that we do have a great deal of freedom in our own homes and the ordinary citizen that is not going to have any violation of that I’m sure. Then we go into Amendment 5 which is so important the rule must not short-change it.
No person shall be held to answer for a capital or otherwise implements crime unless on a presentiment or indictment of a grand jury except in cases the rising of the land or neighbor forces or in the militia when in actual service in time of war or public danger. Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself or be deprived of life liberty or property without due process of law nor shall private property be taken for public use without just compensation. Well now Mr. Dangerfield, how can we
reconcile this very very important clause nor be deprived of life liberty or property without due process of law. How can we reconcile that with the situation of the last war when thousands of Japanese were uprooted from our homes on the West Coast. Isn’t that certainly an invasion of our rights? Japanese
Americans you mean don’t you, not Japanese? Both were involved.
The Japanese relocation, the relocation of Japanese American citizens or American citizens of Japanese stock and the relocation of Japanese aliens appears to have been dictated rather by anti-Japanese bias and hysteria on the West Coast more than by national danger.
In the Korematsu case a divided Supreme Court sustained the relocation.
But in the Endville? case following the same year in 1944 unanimous Court held that Japanese citizens approved loyalty could not be detained indefinitely.
So you’ve got these two cases you don’t quite jibe but that do draw a distinction between the two of them.
Now I don’t think you can say that you can’t relocate American citizens in time of danger. I think you can. I think the Korematsu case is sound on that if there is a real danger but then if the danger passes under the endville case you can’t continually relocation indefinitely. I think you can move you and me let alone Japanese, if the national safety requires it. But on the other hand I still think that that does not mean that you can deprive you and me of our property without due process.
We did have the right to go to the court and find whether it was necessary in the Japanese case and we’d have that right here.
And the court would pass upon the question of due process. I see. Mr. Hall there’s another angle of this I’d like to bring up for you. I know in reporting court trials, I sometimes have felt like that I
had a feeling that the person testifying and perhaps been given a third degree at least the kind of a third degree where old man was questioned for hours and hours and then he decides to submit a long statement. Sometimes in the language that statement doesn’t sound to me at least as if it were the language of that prisoner would have used.
Well do you think that that’s almost making a man testify against him?
Mr. Howe? I think it would come pretty close to that I think that you can best at least I can best comment on that by merely making a little moral point that often it is not the ends that justify the means.
But the means sometimes corrupt the end and there are times when the use rough tactics on prisoners to get information that is not justified because of the means used. And once you start cutting corners and going into violence because you say this fella is the last one what to get and you don’t care how you do it.
Once that begins to keep in on you you finally get what you’ve got in Russia which is the extreme example of what once was very noble and utterly corrupted by the most ruthless means in persuing it. That’s the extreme case.
Hasn’t the Civil Liberties Union been very active in trying to protect individuals on that sort of thing.
Very much so. That’s right.
Well I mean we’ve gone to the Sixth Amendment. Before we leave the fifth I
want to raise the question of due process of law because it is a vague cause that is almost impossible of definition. And courts have not defined what constitutes due process of law. The Fifth Amendment provides that a person cannot be deprived of life liberty or property without due process of law.
And yet the only way to determine whether due process is involved in a particular case is to take it to the court and let the court say this is due process, that is not. Basically it’s the old law of the land mentioned in the Magna Carta. It’s the rule of law which English jurists have applied over the centuries. But you cannot define what is meant by it.
All you can say is that when life liberty or property is taken it must be by fair judicial means. And it’s up to the court to define it in terms of saying this is due process.
This is not due process.
That is an important phrase. Now for The Sixth Amendment: in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime committed, which district shall have been previously ascertained by law and to be informed of the nature and cause of the accusation to be confronted with the witnesses against them to have compulsory process for obtaining witnesses in his favor and to have the Assistance of Counsel for his defense. Well now there’s something related to that.
We’ve been reading so much in recent years of congressional investigations. There have been a great deal of criticism of them. Now here is a person that was being questioned, being questioned very rigorously and he has no lawyer there to assist him or to protect him. He can’t bring in witnesses to bolster his side of the argument.
Yet he gets widely quoted in the newspaper. How does that relate to this amendment?
Well I’d say I put it this way that nobody interested in civil liberties would ever want to curb the power of congressional committees to investigate that perhaps some of these things the congressional committees do invade the privacy of the individual. The main criticism of some of the congressional committees is that their field of operation is not clearly defined and they get into all sorts of vague ideas like unAmerican activities which is not a clear thing like some of the other subjects that have been gone into. I think there also might be ways in which the person testifying before a committee could have it not done in front of the Klieg lights television cameras and the press that some of these things might be done with
a certain amount of privacy and thereby the congressional committee might get more information than it would with all this publicity that surrounds the hearings today. One point must be made: the congressional committee is not a court of law and the man is not on trial.
The congressional committee takes some of the aspects of a trial court in that it has the right to subpoena witnesses in to punish for contempt, that is usually voted by the Congress to the committee holding the hearing. The necessity of congressional investigation is paramount. It must, Congress must have the power to get information through investigation. And certainly the investigation procedures is legal. What is needed is really self-discipline on the part of the two houses of the Congress setting up rules under which investigation will be conducted to avoid the abuses which have crept in in late years.
We have two more amendments both of which are related to court trials: the Seventh Amendment in suits at common law where the value in controversy shall exceed twenty dollar the right of trial by a jury shall be preserved and no fact tried by jury shall be otherwise reexamined in any court of the United States according to the rules of the common law. The Eighth Amendment: excessive bail shall not be required nor excessive fines imposed or cruel and unusual punishment inflicted. Well now who defines excessive bail? What good is this part of the bill? How about this business of having say a 3
million dollar fine on some labor organization.
Well of course the trial court assesses the fine or fixes the bail and determines the punishment. The amendment however that clearly means that on appeal the appellate court can overrule a lower court if the bail is excessive.
If the fine is excessive or if the punishment is cruel and unusual and I think you have it the answer to your question lies the appellate court is the protector of the individual.
Gentlemen our time is growing very very short. I want to turn of the ninth and tenth amendment. The Ninth Amendment: The enumeration in the Constitution of certain rights shall not be construed to deny or discourage others retained by the people. The Tenth Amendment. The powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people. One historian I think once referred to this last amendment of the overt declaration of the obvious, But at least historically it did encouraged two states to fall in line and approve the amendments because they were reassured that the states were
going to be protected.
Our half hour has drawn to a close and I still should like to take a minute to express one or two points. In our discussion this afternoon Quincy Howe and Royden Dangerfield have given us new insight into what the bill of rights means to us at this critical period. So on December 15th the anniversary of the bill of rights, it would be highly appropriate for each us as individuals to remind ourselves that the future of our liberties lies right in our own hands. It follows that because things looked dark during this current period of international crisis that we should not be stampeded into surrendering our liberties. But to make democracy flourish, we should seek to extend the
liberties which protect the individual and safeguard the rights of society as a whole.
Thank you gentlemen. I think you’ve illustrated very well that the bill of rights is still one of America’s most valuable and pertinent documents. Certainly a matter of public affairs. Moderator of our program today was Dan Brown W I L L news director. Participating where Royden Dangerfield an authority on government and public affairs. And W I LL’s news analyst Quncy Howe. Be sure you’re tuned to the 580 spot in the dial a week from today when we present a panel of businessmen and educators discussing a plan for action for revitalizing democracy. Another important program of public affairs. This has been a tape recorded preservation of the University of Illinois radio service.