The United States is sometimes called the “world’s greatest democracy” not because of its size—India has more than three times the population—but because of its alleged commitment to civil liberties. The Bill of Rights (the first ten amendments to the U.S. constitution), we are told, is the very essence of what makes America great.  

If there is one amendment that is considered the bright, shining star of the Bill of Rights it is 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.

It is simple and straightforward enough. It protects individuals and organizations from the any attempt by the federal government to muzzle or repress political speech and activity. Every December 15, the United States celebrates Bill of Rights Day, first proclaimed by President Franklin Roosevelt following the bombing of Pearl Harbor and the entrance of the United States as a formal combatant in the Second World War. Protecting free speech was supposed to be one of our lofty war aims.

Scott Martelle reminds us in The Fear Within that despite its great pledges, the United States government’s commitment to defending “freedom of speech” or “the right of the people peaceably to assemble” has been extremely tenuous. “The United States has a habit of convulsing in fear during times of stress, and in the process undercutting the very freedoms of speech, political belief, and religious expression that Americans profess to hold dear.”

The first amendment, in short, is the first to go in wartime.

Martelle, a former Los Angeles Times reporter and the author of the highly regarded Blood Passion: The Ludlow Massacre and Class War in the American West, has written a book that focuses on the trial of eleven leading members of the American Communist Party (CP) in 1949, including the party’s general secretary, Eugene Dennis, its chairman, William Z. Foster, and Chicago organizer Gil Green. Their trial in 1949—along with the 1951 trial of Julius and Ethel Rosenberg—were the most important political trials of mid-twentieth-century America, and had a devastating impact on civil liberties and left-wing organizations across the country.

The eleven leaders of the CP were charged with violating the Smith Act, formally known as the Alien Registration Act of 1940, which criminalized anyone who “prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so.” The Smith Act, according to a New York Times editorial at the time, brought together “most of the anti-alien and anti-radical legislation offered in Congress in the last twenty years.”

President Roosevelt signed the Smith Act into law—the same president who was soon to proclaim Bill of Rights Day. It was the biggest attack on free speech since the First World War, and it was aimed primarily at the 100,000-strong Communist Party. The attack on the CP was delayed, however, until after the Second World War was over, because of the party’s support for the war effort.

The Smith Act was first used successfully against the much smaller, revolutionary rival to the CP, the Socialist Workers Party (SWP). Twenty-three leaders of the SWP were indicted for sedition in July 1941, convicted, and sentenced to prison. The CP cheered on the prosecution, ridiculously charging the SWP leaders with being “agents of fascism.” The fate the CP wished on the SWP was later to befall the CP itself.

In the summer of 1948, while President Harry S. Truman was defending his administration from withering attacks by leaders of the Republican Party—and denouncing them for whipping up a “national hysteria” with anti-communist rhetoric—he decided to contribute to it by authorizing his Justice Department to indict the leaders of the CP for violating the Smith Act. Eleven CP leaders were arrested across the country, charged with “advocating the overthrow of the United States government.” They were soon released on bail, and the Civil Rights Congress, the legal defense arm of the CP, organized a campaign in support of the defendants.

The political atmosphere during the trial was bad and getting worse. There was a barely contained armed truce between the United States and its rival, “Communist” Russia. The two were the principal victors of the Second World War, and after the defeat of Nazi Germany, they quickly moved to consolidate and extend their influence. Though they weren’t formally at war, the atmosphere was war-like, with heated rhetoric, military maneuvers, and proxy wars being fought for global dominance. The American CP leaders were vilified in the media as “traitors” and a potential “fifth column” in the expected war with Russia.

The atmosphere inside the courtroom was just as bad. The presiding judge was Harold R. Medina, a newly appointed federal judge. A Truman appointee, Medina was unique in the federal judiciary at the time because of his Mexican ancestry, but his father’s family came from the Mexican upper class, and his mother from the American upper class. Medina had all of the prejudices of his class against labor leaders and radicals, so he could be expected to do the right thing for the Truman administration.

The trial, a contentious battle between the defense and the prosecution, lasted nine months. The prosecutors presented CP literature and put on the stand a series of undercover FBI agents, CP turncoats led by their star witness, Louis Budenz, the former editor of the CP’s newspaper The Daily Worker. The defense counsel countered by challenging the veracity of the witnesses’ testimony and arguing that the defendants’ actions were protected by the First Amendment—all to no avail. The jury took less than seven hours to find them guilty on all charges. The Supreme Court upheld their convictions (Dennis v. United States), a decision that opened up the floodgate for more prosecutions. The CP, a small but important force in American society, was effectively destroyed.

Few remember the trial, if they ever knew about it. Is all this ancient history? Scott Martelle says no, and points to the dangers to dissent today. “The use of the Smith Act against Communist Party leaders was an effective attempt by the United States government to criminalize political belief, flouting…the U.S. Constitution…and in some ways it is the sire of the USA PATRIOT Act.” Martelle has written an interesting and lively book that should be read by anyone concerned with the deterioration of civil liberties in this country over the last decade.