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The Hughes Court and Radical Political Dissent: the Case of Dirk De Jonge and Angelo Herndon, 28 Ga

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The Hughes Court and Radical Political Dissent: the Case of Dirk De Jonge and Angelo Herndon, 28 Ga Georgia State University Law Review Volume 28 Article 2 Issue 2 Winter 2012 March 2012 The uH ghes Court and Radical Political Dissent: The aC se of Dirk De Jonge and Angelo Herndon Mark Tushnet Follow this and additional works at: https://readingroom.law.gsu.edu/gsulr Part of the Law Commons Recommended Citation Mark Tushnet, The Hughes Court and Radical Political Dissent: The Case of Dirk De Jonge and Angelo Herndon, 28 Ga. St. U. L. Rev. (2012). Available at: https://readingroom.law.gsu.edu/gsulr/vol28/iss2/2 This Article is brought to you for free and open access by the Publications at Reading Room. It has been accepted for inclusion in Georgia State University Law Review by an authorized editor of Reading Room. For more information, please contact [email protected]. Tushnet: The Hughes Court and Radical Political Dissent: The Case of Dirk THE HUGHES COURT AND RADICAL POLITICAL DISSENT: THE CASES OF DIRK DE JONGE AND ANGELO HERNDON Mark Tushnet1 Scattered Supreme Court decisions in the early twentieth century dealt with the Constitution’s protection of freedom of speech.2 Radical dissent over United States participation in World War I and the nation’s intervention against the Bolshevik revolution in Russia led the Court to its first sustained engagement with free speech cases. By the time Chief Justice Hughes took the center chair, the national government largely had abandoned its pursuit of radical dissenters, some of whom played large roles in the labor organizing that provided political support for the Roosevelt administration and, from 1935 to 1939, in the Communist Party’s “Popular Front” that aligned the Party and its members and sympathizers with the administration. The Depression gave capitalism’s critics more opportunities to organize, and state governments occasionally went through local “red scares,” prosecuting such critics—particularly members of the newly organized Communist Party—who then raised free speech defenses. Today we may be inclined to associate robust protection of civil liberties with the legacy of the Roosevelt Court after 1937. But, the Hughes Court at least cut away some of the underbrush before the Court’s transformation. After laying out the doctrinal background for the Hughes Court’s decisions in Part I, this Article examines Hughes Court decisions involving political radicals in Part II. The Court’s “conservatives” and “liberals” were less divided on issues of civil liberties than today’s readers might think. The conservatives may have felt the tug of a moderate libertarianism that affected their approach to constitutional law generally; the liberals the tug of 1. This Article is an expansion of the 47th Henry J. Miller Lecture given at Georgia State University Law School, October 1, 2010. I thank Professor Eric Segall and Dean Steven Kamenshine for the invitation to present the lecture. 2. See e.g., Patterson v. Colorado, 205 U.S. 454 (1907); Halter v. Nebraska, 205 U.S. 34 (1907). 333 Published by Reading Room, 2012 1 Georgia State University Law Review, Vol. 28, Iss. 2 [2012], Art. 2 334 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 28:2 advocacy for causes with which they shared some affinities even as they disagreed vigorously with radicals’ overall programs. And, constitutional doctrine mattered. I. THE DOCTRINAL BACKGROUND At the start of the 1930s the constitutional law of free expression applicable to radical dissent fell into two categories, with one important collateral feature. The first category involved cases in which speakers were prosecuted because what they said had some possibility of leading to violations of some unquestionably valid law—what the cases called speech that in some sense caused a “substantive evil” that legislatures had a right to prevent. The second involved classic sedition laws, in which legislatures had outlawed some words or political doctrines as such, without requiring any showing in specific prosecutions that the doctrines had some causal connection to a substantive evil. The collateral feature was that the Court’s doctrines applied to cases involving prosecutions by state authorities as well as national ones. Schenck v. United States was the leading case in the first category.3 Charles Schenck was an important figure in the Socialist Party. He helped prepare and distribute a pamphlet criticizing U.S. involvement in World War I, and in effect urging that young men refuse to register for the draft, which it described as little better than slavery and imprisonment. He was charged with violating the 1917 Espionage Act’s prohibition of “willfully caus[ing] or attempt[ing] to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or willfully obstruct[ing] the recruiting or enlistment service of the United States.”4 Justice Oliver Wendell Holmes’s terse opinion upheld the prosecution against Schenck’s invocation of the First Amendment. 3. 249 U.S. 47 (1919). Cases applying the standard developed in Schenck. included Frohwerk v. United States, 249 U.S. 204 (1919); Debs v. United States, 249 U.S. 211 (1919). 4. 18 U.S.C. § 2388 (2006). https://readingroom.law.gsu.edu/gsulr/vol28/iss2/2 2 Tushnet: The Hughes Court and Radical Political Dissent: The Case of Dirk 2012] RADICAL POLITICAL DISSENT 335 Justice Holmes’s thinking was influenced by the word “attempt” in the statute. As a scholar and state-court judge he had made important contributions to the development of the common law of attempts. In his l881 lectures on “The Common Law,” Justice Holmes pointed out that: The law does not punish every act which is done with the intent to bring about a crime. If a man starts from Boston to Cambridge for the purpose of committing a murder when he gets there, but is stopped by the draw and goes home, he is no more punishable than if he had sat in his chair and resolved to shoot somebody, but on second thoughts had given up the notion.5 Judges had “puzzled where to draw the line,” but Justice Holmes argued that the principle was clear: “Public policy, that is to say, legislative considerations, are at the bottom of the matter; the considerations being . the nearness of the danger, the greatness of the harm, and the degree of apprehension felt.”6 As a judge on the Massachusetts Supreme Judicial Court, Justice Holmes applied this approach in Commonwealth v. Kennedy, where the defendant had been charged with attempted murder for mixing rat poison in his intended victim’s tea.7 Whether Kennedy’s actions were mere preparations, which could not be punished, or were a real attempt to murder depended on whether they were “near enough” to the intended harm: Every question of proximity must be determined by its own circumstances . and the gravity of the crime, the uncertainty of the result, and the seriousness of the apprehension . would warrant holding the liability for an attempt to begin at a point more remote from the possibility of accomplishing what is 5. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 68 (Little, Brown, & Co. 1881). 6. Id. 7. 48 N.E. 770 (Mass. 1897). Published by Reading Room, 2012 3 Georgia State University Law Review, Vol. 28, Iss. 2 [2012], Art. 2 336 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 28:2 expected than might be the case with lighter crimes.8 The question of proximity was generally for the jury to decide, although Justice Holmes reserved the possibility that courts could block attempt prosecutions where the actions were mere preparations too remote from the ultimate harm.9 Justice Holmes began his First Amendment analysis in Schenck by conceding that “in many places and in ordinary times,” what Schenck had published would have been protected by the First Amendment.10 But, he continued, “the character of every act depends upon the circumstances in which it is done.”11 Evoking the language he had used in describing criminal attempts, Justice Holmes wrote that: The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.12 The war-time circumstances mattered: “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.”13 Justice Holmes also wrote the Court’s opinion upholding the conviction of Eugene Victor Debs, the nation’s most prominent Socialist, for obstructing the draft in a speech where Debs had 8. Id. at 771. 9. Leading scholarly treatments of the law of attempts echoed Justice Holmes’s approach. See J.H. Beale, Jr., Criminal Attempts, 16 HARV. L. REV. 491, 501 (1903) (asserting that what mattered was a “dangerous proximity to success,” which was “a question of degree.”); see also Francis Bowes Sayre, Criminal Attempts, 41 HARV. L. REV. 821, 846 (1928) (“It is thus manifestly impossible to lay down any mechanical or hard and fast rule for the drawing of the line between preparation and indictable attempts . .”). 10. Schenck v. United States, 249 U.S. 47, 52 (1919). 11. Id. 12. Id. at 52. 13. Id. https://readingroom.law.gsu.edu/gsulr/vol28/iss2/2 4 Tushnet: The Hughes Court and Radical Political Dissent: The Case of Dirk 2012] RADICAL POLITICAL DISSENT 337 praised draft resisters and stated, “you need to know that you are fit for something better than slavery and cannon fodder.”14 He dissented, though, along with Justice Louis Brandeis, when the Court upheld the convictions of five Socialists from New York, who had printed a leaflet vigorously criticizing the United States’ intervention against the Russian Revolution, calling President Woodrow Wilson a coward, and urging workers to “wake up” and “throw away all confidence [in the government], .
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