blacktitle.jpg (12329 bytes)

"Judicial Treatment of Nonconformists"--by William O. Douglas

excerpted from THE COURT YEARS 1939-1975: THE AUTOBIOGRAPHY OF WILLIAM O. DOUGLAS.  New York: Random House, 1980.

The radical has never fared well in American life, whether he was dubbed anarchist, socialist, Bolshevik or Communist. Public passions have always run high against him; and that feeling has radiated from judges as well as from newspapers and the people on Main Street. The result was manifest not only in cases like In re Debs (158 U.S. 564) but whenever the bench felt the "tremor of socialism" Justice Oliver Wendell Holmes had referred to. The seeds of Communist thought which were spread throughout the world following 1917 fell, therefore, on inhospitable soil. America has long been and remains a very conservative nation. In the 1950s, when the Cold War flourished, the resulting climate of opinion made the dispensation of justice very unlikely when one was merely charged with being a Communist, let alone a person who was, in fact, a hard-core member. Juries were almost bound to reflect the dark suspicions which most Americans harbored about dispensers of a foreign ideology. Judges were not much more independent; it often seemed that they were being whipsawed by public passions and transformed into agents of intolerance. State judges, elected to office, were often mere mouthpieces of the most intolerant members of the community. Michael A. Musmanno of the Pennsylvania Supreme Court was a notorious example of this kind of official, but even federal judges, named for life, were affected, as is illustrated by the long series of sad episodes which resulted in federal prosecutions. The break with tradition in my time came with Dennis v. United States (341 U.S. 494), decided in 1951. The indictment charged a "conspiracy" under the Smith Act (18 U.S.C 371) to teach Marxist thought and Marxist doctrine. (Using this rationale, any faculty of a school or college which undertook to offer such courses could also be categorized as taking part in a "conspiracy.") The only difference in Dennis was that the defendants were in fact Communists. Instruction in Communist ideology by Communists must therefore, it was said, be "advocacy"; and advocacy was taken to mean the hope that the doctrine would become acceptable and put into operation. [See also, the McCarran Act of 1950; and see selections from the Dennis trial transcript.]

In my dissent in Dennis, I said:

Communism in ... the world scene is no bogeyman; but Communism as a political faction or party in this country plainly is. Communism has been so thoroughly exposed in this country that it has been crippled as a political force.   Free speech has destroyed it as an effective political  party.... In days of trouble and confusion, when bread lines were long, when the unemployed walked the streets, when people were starving, the advocates of a short-cut by revolution might have a chance to gain adherents.  But today there are no such conditions.  The country is not in despair; the people know Soviet Communism; the doctrine of Soviet revolution is exposed in all of its ugliness and the American people want none of it. (341  U.S.  588)

Certainly freedom of expression as used in the First Amendment includes more than teaching in the abstract; it means all shades of advocacy from lukewarm endorsement to partisan promotion, as the Court held in Terminiello v. Chicago (337 U.S. 1).  To be sure, that idea had been qualified during World War I by the "clear and present danger" test first adumbrated by Holmes in Schenck v. United States (249 U.S. 47, 52).  Advocacy at some point can come so close to the line where action commences that the two become brigaded.  Since the legislature can ban the action, it can ban the advocacy that is closely blended with the

But that idea was perverted in Dennis.  The "clear and present danger" test was restated to mean that it was the intent of the defendants in teaching the Marxist creed to overthrow the government "as speedily as circumstances would permit" (341 U.S. 509-510).

Thus, those who believed in Communism and hoped it would take hold here and taught the creed became criminals, while those who were more detached--that is, did not believe in Communism--could teach it with impunity.  Yet from the academic viewpoint, the deeper a person was immersed in a subject and the more passionately he felt about it, the better teacher he usually was--whether the course be one on Wordsworth, Henry George or Karl Marx.

At the time of Dennis the danger of Communist advocacy was magnified by two related considerations: first, the Communist world seemed even more monolithic than the Catholic Church, all units working for one central cause; second, control of the American Communist Party seemed to be in the hands of Moscow and the other capitals of Eastern Europe.  These
factors made American Communism look like a powerful and destructive foreign force.   Yet if that was the reason for reformulation of the "clear and present danger" test by the Court in Dennis, does the new, relaxed, easygoing test apply only in Communist cases or to any minority of dissidents whether they are advocating Black Power or are Jehovah's Witnesses or sharecroppers?

In the October 1943 term, there had been a similar case from the Eighth Circuit Court of Appeals, Dunne v. United States (138 F 2d 137), in which we denied certiorari.  The case involved two conspiracies--advocacy of the overthrow of the government by violence, and advocacy of disloyalty and insubordination in the armed services.  No overt acts were charged
apart from advocacy.  Yet the case, emotionally speaking, was less appealing than Dennis because Dennis was in the classic framework of teaching.

Murphy and Rutledge, joined by Black, voted to grant the petition.  If I had done likewise, there would have been four to grant and the Court would have heard the case.  It was clear that the majority of five--Stone, Roberts, Reed, Frankfurter and Jackson--would have voted to affirm; and it seemed to me at that particular point in history unwise to put the Court's seal of approval on that doctrine.  Better let the issue be presented at a more auspicious time! That is why I did not vote to grant the petition.

Such a judgment is often made at Conference, and everyone who has been on the Court has succumbed to that influence.  But the study of Dunne reveals how unwise such deferrals may be.  In 1943 and 1944, Dunne would have been a five-to-four decision.  By the time Dennis arrived, Rutledge and Murphy had passed on, and there were fewer votes on the libertarian side than there would have been a decade earlier.  The moral is to take important cases whenever four votes are available and not to speculate as to what time in the future will be more auspicious.   In 1943 [Justices] Black, Douglas, Murphy and Rutledge looked like a long-term, enduring bloc of [liberal] votes.  But death was to play a conspicuous role. 

We will discuss later the 1947 Attorney General's list of subversive organizations.  What is interesting to note here is not that the executive branch issued such a list but that the lower courts sustained the action.   When the question of the list reached our Court in joint Anti-Fascist Committee v. McGrath (341 U.S. 123), decided on April 30, 1951, we reversed only Reed, Vinson and Minton dissenting.

But while the Court ruled that the organization called "subversive" had a right to a hearing before being so branded, an individual employee charged with being disloyal or a poor security risk had no right to confront his accuser and have a full-fledged hearing in the Western sense of the term (Bailey v. Richardson, 341 U.S. 918).

Such vagaries of decision could be explained by the changing personnel of the Court.  The same justices who decided the Anti-Fascist Committee case decided the Bailey case.  The former decision was in defense of liberty, while the latter restricted it.  That seeming inconsistency can be explained only on the ground that the majority of five in the Anti-Fascist Committee case included Burton, who went off on a construction of an executive order as not authorizing what the Attorney General had done.  Had he reached the constitutional question, he would have been with the dissenters.  The alignment in the Bailey case reflects that fact.

In 1950 the Court held that Congress could require officers of unions employing the services of the National Labor Relations Board (NLRB) to sign affidavits that they were not Communists.  This interference with First Amendment rights was justified as protecting commerce against political strikes (American Communications Association v. Douds, 339 US 382).  Clark, Minton and I took no part--I was on a long convalescence in Arizona.  Vinson wrote for the Court.   Only Black dissented, saying that the First Amendment forbade penalizing a person for the political views he held.  How that view could be refuted I never knew.   The majority said, of course, that Congress could legislate against "political" strikes.  But that is only another way of saying that Congress may make some laws abridging freedom of expression.

The states, like the federal government, made lists of " subversive" organizations; and some, like New York, disqualified members of such an organization from public employment--for example, from working as a teacher.  A teacher held ineligible was entitled to a hearing; but he or she could not challenge the finding that the organization he or she was accused of joining was "subversive." Moreover, the mere fact of membership raised a prima facie case of his or her own guilt.  The chance
of proving innocence in the face of membership was nil when the witch hunt was on.   Yet it is common knowledge that people join even the Republican Party with private disavowals of some of its aims.

The system of spying and surveillance which follows in the wake of such laws is obvious; in particular, its effect on academic freedom is shattering.  Yet in 1952 the Court sustained the law (Adler v. Board of Education, 342 U.S. 485).  In 1954 the Court in Barsky v. Board of Regents (347 U.S. 442) authorized suspension of a physician from practice because he had been convicted of failing to produce before the House Un-American Activities Committee documents which it subpoenaed from an
organization on the Attorney General's subversive list engaged in opposing Franco in Spain.  This suspension order against Barsky was sustained, even though there was not a shred of evidence that he was not a competent doctor, nor that he used improper conduct toward his patients.  It was obvious that he lost his right to be a doctor merely because of his political beliefs and his mistaken notion that his constitutional rights entitled him to defy the House committee.

Dennis, Adler, Bailey and Barsky show the Court running with the hounds and joining the hue and cry against unpopular people.In other cases decided during the mid-fifties--Peters v. Hobby (349 US 331), Cole v. Young (351 U.S. 536), Vitarelli v. Seaton (359 US 535), Service v. Dulles (354 US 363), and in Greene v. McElroy (360 U.S. 474), decided in 1959--the Court swerved its course and acted to protect the rights of those same people by limiting the thrust of the antisubversive program.

The arrival of Earl Warren made part of the difference.  Moreover, I think the notorious and high-handed way in which the loyalty security program was administered was making itself felt on the judicial conscience.   In any event, the Court construed executive orders and regulations concerning the discharge of "subversives" from government employment quite strictly, to give the accused employees a full measure of procedural due process of law. 

The individual states also got involved in the "roundup" of suspected radicals.  The Court decided Pennsylvania v. Nelson (350 U.S. 497), involving a prosecution under a state sedition law.  There is no question that a state may proscribe sedition against its own government.  The prosecution in Nelson, however, was for sedition against the federal government, a matter which Congress had dealt with in the Smith Act (54 Stat. 670).  The Cold War was at its peak and every local prosecutor was
trying to get into the act.  Think what a political plum it would be for a prosecutor to catch a Communist! But the FBI also was hot on the trail of all known Communists for prosecution under the Smith Act, and J. Edgar Hoover, in his talks with state agencies, emphasized how much damage an eager state prosecutor could do by flushing a suspect before the FBI had cast its net and rounded everyone up.  It was, in other words, in the national interest to entrust protection of the nation to federal officers.

The Court held that state prosecution for sedition against the nation had been preempted by the Smith Act and that enforcement of a state prosecution of this kind presented a serious danger of conflict with the administration of the federal program.  It accordingly upheld the Pennsylvania Supreme Court, which had ruled to the same effect.

The resulting uproar was loud and incessant.   About seventy bills were introduced to change the result in the Nelson case; all but four died in committee.  The others were debated on the floor of the Senate and the House and failed of passage.  The gist of these bills was that nothing but an express provision in a federal law should prevent a state from prosecuting acts of subversion or sedition against the federal government.  The FBI must have been greatly relieved that none of these measures was enacted.

Then, in 1956, came Slochower v. Board 0 f Education (350 U.S. 551), in which the state of New York discharged a teacher for invoking the Self-Incrimination Clause of the Fifth Amendment.  The teacher testified before a committee of the Congress that he was not then a member of the Communist Party but refused to testify about his alleged membership in 1940 and 1941 on the ground that his answers might incriminate him.  Thereupon he was discharged from his job.  Invoking the privilege, we
held, was a means of protecting "the innocent who otherwise might be ensnared by ambiguous circumstances" and may not properly be taken as a confession of guilt.   The Slochower decision raised another howl concerning states' rights.

During the next Term two other so-called states' rights cases were decided.  One Schware was denied admission to the New Mexico Bar for lack of "good moral character." The main evidence against him was that for seven or eight years he had been a member of the Communist Party, resigning from it in 1940 after disillusionment.  He had never engaged in illegal activity, nor had he done anything that was morally reprehensible as a member of that party.  During the time he was a member, the party
was a lawful political party on the ballot in most states.  The Court refused on that record to infer that all members shared the "evil purposes" and the "illegal conduct" of some members.  The Court concluded that there is "no evidence in the record which rationally justifies a finding that Schware was morally unfit to practice law" (Schware v. Board of Bar Examiners, 353 U.S. 232, 247).

On the same day the Court decided Konigsberg v. State Bar of California (353 U.S. 252).  Konigsberg had been denied admission to the California Bar for lack of "good moral character." There was testimony that he had attended Communist Party meetings in 1941, at a time when the party was lawful in California.  There was no evidence linking him to any illegal
or disloyal activities, though he had criticized the United States' role in the Korean "war," our Dennis decision and racial discrimination.  But, as the Court held, such expressions of political views are no evidence of bad moral character.   Konigsberg had refused to answer questions concerning his political opinions and associations, including his membership in the Communist Party, on the ground that the question invaded his First Amendment rights.  This was held to be no basis for concluding that he had a bad moral character.  And the Court further held that there was no evidence that he advocated overthrow of the government by force.

These cases were followed by Sweezy v. New Hampshire (354 US 234).  A state legislature had defined a subversive person very broadly and entrusted the Attorney General to find out if there were any in the state.   Sweezy, a teacher and lecturer was examined, and he answered most of the questions by saying that he had never been a Communist, never taught violent overthrow of the government, never knowingly associated with Communists, but that he was a socialist who believed in peaceful change and had belonged to some organizations on the Attorney General's list.  He refused, however, to answer questions concerning (1) a lecture he had given at a university; (2) his and his friends' activities in the Progressive Party; and (3) his opinion and beliefs.  For these refusals he was held in contempt and our Court reversed.

Among the questions at which he balked were the following:

What was the subject of your lecture?

Didn't you tell the class at the University of New Hampshire on Monday, March 22, 1954, that Socialism was inevitable in this country?

Did you advocate Marxism at that time?

Did you in this last lecture on March 22 or in any of the former lectures espouse the theory of dialectical materialism?

I have in the file here a statement from a person who attended your class, and I will read it in part because I don't want you to think I am just fishing.  "His talk this time was on the inevitability of the Socialist program.  It was a glossed-over interpretation of the materialist dialectic." Now, again I ask you the original question.

The Court emphasized that the questions at which Sweezy balked were in the First Amendment area: academic freedom, including the right to pursue ideas to the horizon; and "the right to engage in political expression and association."

Watkins v. United States (354 U.S.) likewise created a tempest.  Watkins was convicted of contempt of Congress.  He had been a member of the Communist Party and testified fully regarding all of his activities.   He also was willing to testify about anyone who still was a member of the party, but he refused to testify about those who once had been members but long since ceased to be such.  It was for such refusal that he was convicted.

In reversing, the Court said that the power to investigate is part of the lawmaking power.  Since Congress, by the First Amendment, is barred from making a law abridging freedom of speech, press or assembly, the First Amendment is a barrier to certain questions.  Thus, "there is no congressional power to expose for the sake of exposure."

But the promise contained in the Watkins opinion was not kept.  Barenblatt v. United States (360 U.S. 109), decided on June 8,1959, and Wilkinson v. United States (365 U.S. 399) and Braden v. United States (365 U.S. 431), both decided on February 27, 1961, gave the House Un-American Activities Committee broad powers to probe a person's ideas and beliefs.  In effect, they allowed the committee to subpoena anyone who had criticized the committee, and to examine all facets of his life, holding him up as a subversive or a traitor and, if he was man enough to defy the committee, to see that he went off to jail for his contempt.  Moreover, the authorization of the committee in these three cases was the same as it had been in Watkins-to make investigations of "the extent, character and objects of un-American propaganda activities in the United States." Criticizing the committee was brought under that heading.  What had been six to one for Watkins became five to four against Barenblatt, Wilkinson and Braden.

In the first Konigsberg case, the Court did not consider whether Konigsberg's refusal to answer questions concerning his past or present membership in the Communist Party was a proper ground for barring him from law practice.   So when the case went back to California, it was referred back to the bar committee, which asked him questions concerning that membership, questions he refused to answer.  His refusal to answer was the basis for denying his admission to the bar, and the case came to
us again (366 U.S. 36).

By 1961, when the Konigsberg case returned to the Court, Stewart and Whittaker had been appointed and confirmed, and they, together with Frankfurter, Clark and Harlan, formed a new majority of five that finally kept Konigsberg from the California Bar on the ground that his refusal to answer prevented a full investigation of his qualifications.

On the same day that we decided Watkins in support of the First Amendment, we also decided Yates v. United States (354 U.S. 298), making four decisions all told on a day which some critics called Red Monday.  The crime alleged was a conspiracy to "organize" the Communist Party in this country in alleged violation of the Smith Act (18 U.S.C. 371, 2385).  The party had been organized in 1945 and the indictment returned in 1951.  We held that the prosecution was therefore barred by the three-year statute of limitations.  Since the Smith Act did not define organize," we followed the old rule that criminal statutes are to be strictly construed and therefore gave the word its narrow meaning.

The  Smith  Act  also  made   criminal  advocacy  of  the  desirability or propriety of overthrowing the government by force and violence.  The Court held that advocacy of mere abstract doctrine of forcible overthrow was not punishable.  The advocacy, to be criminal, must be reasonably and ordinarily calculable to incite people to action.   The voices on the Hill protested the narrow construction of the word "organize." But they did not criticize the Court's construction of the word "advocacy, which followed the construction in the Dennis case and ended in a great dilution of First Amendment rights.

Then came Scales v. United States (367 U.S. 203), decided on June 5, 1961.  Scales was convicted under the Smith Act of being an active member of the Communist Party with knowledge of the party's illegal purpose and with a specific intent to accomplish the overthrow of the government "as speedily as circumstances would permit." No illegal actions were charged.  His "crime" was belief, advocacy of action, and teaching Marxism in practical operation.  Sedition or treason in the area of politics, and heresy in the field of religion had, in times past, made beliefs criminal acts.  We came to this country to get away from such punishment for what was in our minds.

In Scales, the right of advocacy for the purpose of incitement, as well as for education, was lost by a five-to-four decision.  But free speech traditionally had included both.  The First Amendment says Congress may make "no law" abridging freedom of speech.  After Dennis and Scales, Congress may make some laws abridging freedom of speech.

The American philosophy was that anyone, no matter how unpopular or disliked, was entitled to the due process guaranteed by the Constitution.  Yet some of the press dubbed a justice "Communist" whenever he ruled in favor of anyone charged with being a member of that party.  Thus it was that some of us were put into tables and charts showing we were 90 percent or more "Communist," while other justices were only 35 percent "Communist."

The Court was severely criticized for the modest stands it took to protect the civil rights of this despised minority.  In a mature society it would have been roundly criticized for the shameful performance in Dennis and in Scales.

Dennis and Scales mark the greatest decline in free speech in the history of the nation.  The constitutional theory, expounded by Jefferson and Madison, was to let the people believe what they choose and to talk as they like, putting reliance on public debate to expose the fallacy of ideas and to correct errors.  Government has no rightful concern with interfering except and unless beliefs and ideas break out into violent acts.  Under that view, Communists would not be driven underground.  They would have the hustings, the printing press, advocacy, propaganda and all the tools which other publicists enjoy.

That course is the constitutional standard; and it does presuppose a mature people.  It turned out that we as a nation were as intolerant of this opposed ideology as Russia is to advocacy of free enterprise.  We keep a wider part of the spectrum open for discussion than does Russia, but where the clash of ideas is clear and vivid, we follow the Soviet pattern.  The majority in Scales reflected the public attitude on that issue, and they firmly believed that the safety of the republic did not permit the other choice.

Yet the only evidence of addiction to force and violence in these Communist cases was the classical writings of Marx, Engels, Lenin and Stalin.  These writings, however, did not indicate that Communists in the United States were geared for a coup.  Lacking such evidence, it is impossible to square the Smith Act prosecutions with our own Declaration of Independence, not to mention the First Amendment.

[. . . .]

The cases we have discussed so far arose

  1. Under Truman's and Eisenhower's executive orders
  2. Under the Smith Act, making advocacy of the Communist cause or organizing that party criminal
  3. Under state programs to control "subversives"

But the most pervasive law passed "concerning the Communist menace" was the Subversive Activities Control Act (50 U.S.C. Sec. 781 et seq.), enacted in 1950.

The record of the Court under this act was by my lights much better.  The arrival of Earl Warren, Abe Fortas and Arthur Goldberg made some of the difference.

The act established a Subversive Activities Control Board (SACB) with broad powers to investigate and to require organizations it found to be "Communist" to register.   The act made it a crime for a member of an organization required to be registered to apply for a passport.  That provision was struck down in 1964 in Aptheker v. Secretary of State (378 U.S. 500) because, inter alia, it interfered with a person's constitutional right to travel and his right of freedom of association.

The next year the Court considered Albertson v. SACB (382 U.S. 70).  The board had directed the Communist Party to register with the Attorney General, and when the Party failed to do so, the Attorney General obtained from the board an order requiring that the members register.  The Court held that such registration ran afoul of the Fifth Amendment because an admission of membership in the Communist Party might be used to prosecute a registrant under the Smith Act.   Congress thereupon amended the act to abolish registration and to give the board power to determine if a group is a "Communist" organization or if a person is a member of it.  The procedure under that section was held unconstitutional in 1969 in Boorda v. SACB (421 F 2d 1142), since no distinction was made between those members who shared the illegal aims of the party from those whose only aims were constitutionally protected.

In 1967 we held in United States v. Robel (389 U.S. 258) that Congress could not indiscriminately make it a crime for a member of the Communist Party to work in a defense facility, in this case a shipyard.  The statute made irrelevant the fact that the worker was a passive or inactive member, that he was unaware of the party's unlawful aims, that he disagreed with those unlawful aims, or that he occupied a nonsensitive position in the defense facility.  Those innocent associations were held
to be protected by the First Amendment.  While Congress can legislate against espionage, the laws it enacts must be "narrowly drawn" to hit the precise evil so that guilt is not determined by association.

There were minor aspects of this act which survived.  Its essential features, however, ran afoul of the Constitution and the Bill of Rights.  There was a detention-camp provision in the act under which "subversives" could be locked up.  In 1971 this detention-camp provision was repealed because popular sentiment was strongly adverse to it.  The vote in the House was 356 to 49 (117 Cong. Record, sec. 31781).  The repeal added a new provision that no one could be imprisoned or detained for
"subversion" except pursuant to an act of Congress.  Thus Congress evinced an intent that no President should be allowed to repeat what was done in World War 11 when Americans of Japanese ancestry were put into camps (Ibid. sec. 31753 et seq.; H. R. 92-116, 92d Cong., 1st Sess.).

The Subversive Activities Control Board slowly became defunct.  The appropriation for the board was $350,000 in 1973, but the next year it was not funded at all.  Thus ended the Subversive Activities Control Act, one of the most repressive measures enacted by Congress since the Alien and Sedition Act of 1798.

When the act was passed by Congress, Truman vetoed. (His veto message had been falsely attributed to Felix Frankfurter.) The veto was overridden in the House by a vote Of 286 to 48.  Fred Vinson, shortly to become Chief Justice, voted with the majority, as did Richard Nixon and Jack Kennedy.  Those voting in the House not to overrule included Henry (Scoop) Jackson, Helen Gahagan Douglas, Andy Biemiller and James Roosevelt (96 Cong.  Record 15632).  The vote in the Senate was 57 to overrule and 10 to sustain Truman.  Hubert Humphrey, Paul Douglas and Estes Kefauver were among the ten (Ibid. 15726).

Truman's veto message said, as we have seen, that the act would put the government "in the thought-control business" and that it would give "government officials vast powers to harass all our citizens in the exercise of their right of free speech." Truman did not underrate the Communists, but he was convinced that requiring Communist organizations to divulge information about themselves is "about as practical as requiring thieves to register with the sheriff."

He pointed out that an organization would be a "Communist-front organization" within the meaning of the act if "the positions taken and advanced by it from time to time on matters of policy do not deviate from those" of the Communist Party.  This was what became known as parallelism." He who believes in Medicare is a Communist because Communists favor Medicare!!

This was a historic veto (Ibid. 1562 et seq.; 5726).  It anticipated in an uncanny way the court decisions which over the years would invalidate the crucial provisions of the act because they ran against America's constitutional traditions and way of life.

The Court also did a shade better when it came to loyalty oaths.  The vice of many loyalty oaths is that they look to the past, not to present fitness or future promises of behavior.  They punish a person for acts which may not have been unlawful when committed.  They have all the essential earmarks of bills of attainder historically used to inflict punishment on unpopular minorities.   A person seeking a public post can of course be tested for present loyalty and for his disposition toward law and order.  But disqualifying him because of past actions or thoughts that are not necessarily relevant to present fitness is punishment for acts which may have been innocent when done.  Certainly a person put on the blacklist for public employment suffers punishment of an acute and measurable amount.

Loyalty oaths are an old familiar means of hounding unpopular people.  In 1966, in Elfbrandt v. Russell (384 U.S. 11), the state of Arizona required an oath of a teacher under which she might be guilty of perjury if she attended the Pugwash Conference, which was allegedly predominantly Communist.   Freedom of association is a First Amendment right; a person should be able to expose herself to any group, to any school of thought, without being tagged as a subversive.  The very presence of an oath
requiring one official to swear he is a true believer puts pressure on all to take the oath lest they too be persecuted as ideological strays.

The loyalty oath has a special and severe impact on teachers.  It is wholly inconsistent with the ideal of the university, never better  described than by my friend Robert M. Hutchins:

Now, a university is a place that is established and will function for the benefit of society, provided it is a center of independent thought.  It is a center of independent thought and criticism that is created in the interest of the progress of society, and the one reason that we know that every totalitarian government must fail is that no totalitarian government is prepared to face the consequences of creating free universities.

It is important for this purpose to attract into the institution men of the greatest capacity, and to encourage them to exercise their
independent judgment.

Education is a kind of continuing dialogue, and a dialogue assumes, in the nature of the case, different points of view.

The civilization which I work toward and which, I am sure, every American is working toward, could be called a civilization of the dialogue, where, instead of shooting one another when you differ, you reason things out together.

In this dialogue, then, you cannot assume that you are going to have everybody thinking the same way or feeling the same way.  It would be unprogressive if that happened.  The hope of eventual development would be gone.  More than that, of course it would be very boring. A university, then, is a kind of continuing Socratic conversation on the highest level for the very best people you can think of, you can bring together, about the most important questions, and the thing that you must do, to the uttermost possible limits, is to guarantee those men the freedom to think and to express themselves.

Now, the limits on this freedom cannot be merely prejudice, because although our prejudices might be perfectly satisfactory, the prejudices of our successors, or of those who are in a position to bring pressure to bear on the institution, might be subversive in the real sense, subverting the American doctrine of free thought and free speech.

In my time that ideal of the university was greatly blurred.  The university and college became corrupted by many influences.   The witch hunt" seriously seared many.  Secret use of CIA funds corrupted others.  The $16 billion a year spent by the Pentagon for "research and development" was largely distributed through universities; and the recipients, usually individual professors, became research adjuncts of the Pentagon, not scholars in pursuit of truth.  Pentagon money allowed science to outweigh the humanities; it resulted in many unseemly faculty contests and stirred much student unrest.  Beyond all these influences was the growing domination of university thought by financial backers.  Faculties became more and more defenders of the status quo.  A young lecturer who was bold enough to propose that Peking be admitted to the United Nations had little or no chance of ever becoming a full professor.

With the passage of the loyalty security programs, university environments did not relax; rather they hardened.  The lessons of
conformity and the rewards it brought became subtle influences in academic circles.   Faculties walked more and more in goose step to the tunes of the Establishment.   Universities were no longer places of ferment but became more and more institutions dispensing information on how to get ahead and sedatives that made students less and less responsive to the mighty forces of rebellion that were making the nation seethe.

I believed, with William M. Birenbaum, that "a campus without disruption is polluted, like a river without fish or a defoliated forest along the Ho Chi Minh Trail. . . . The campus is now like the compulsory ghetto."

Return to About McCarthyism