Monday, May 9, 2011

The Smith Act Prosecutions

Apropos of Scott Martelle, The Fear Within: Spies, Commies, and American Democracy on Trial, recently mentioned on this blog, I discussed the Smith Act prosecutions a few years back in the Northwestern University Law Review. I concluded that ideally the government should have prosecuted the defendants for conspiracy to commit espionage, but that the Smith Act prosecutions may have been a reasonable second-best alternative under the circumstances:
Thus, the government was faced with several unattractive options: prosecute Communists for espionage and reveal the Venona decoding, destroying an extremely valuable source of information on the Soviets; spend huge resources monitoring the CPUSA in a potentially fruitless attempt to disrupt its espionage activities; ignore the CPUSA's espionage and continue to allow American secrets to leak to the country's greatest enemy; or stretch the boundaries of the First Amendment and prosecute CPUSA leaders under the Smith Act, as the government had previously done to Nazi and fascist leaders [prosecutions that are considered far less noteworthy by historians, and that were supported by CPUSA leaders!]. The government did not obviously choose the worst option.
Of course, I spent several pages elaborating on these arguments, so if you're interested, read the whole thing.

1 comment:

Anders Walker said...

Thanks for the comment on reading length. I've also had law students complain about length, pushing me to move away from books and towards heavily edited cases and journal articles. Of course, I remain interested in books that span several topics/time periods and therefore can be assigned for several classes, perhaps even revisited through the semester. Joseph Ellis's American Creation does a relatively good job of this for the founding period, in part because he has separate sections on the Constitutional Convention, Native Americans, westward expansion, and so on. Currently, I am currently considering Tomlins as a possible recurring book, portions of which can be assigned for the colonial period, the founding, slavery, and the antebellum era. Another book that intrigues is Dan Sharfstein's Invisible Line, which also covers several historical epochs, providing nice windows into different periods that can be revisited. Finally, I would be very interested in a clearinghouse of syllabi, and happy to post mine.