Red Scare by Clay Risen

Author:Clay Risen
Language: eng
Format: epub
Publisher: Scribner
Published: 2025-03-18T00:00:00+00:00

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With the Smith Act decision, the Court signaled that it was now on the side of the red hunters, that, in the words of Douglas, it was “running with the hounds.” Less than a month later, in August 1951, the FBI arrested 17 second-tier Communist leaders, and over the next six years it would arrest 128 more. All were charged under the Smith Act. None were shown to have done anything more than discuss Marx, organize picket lines, and do what they could to publicize their revolutionary ideas. Lacking the fireworks and protests of the first Smith Act case, the trials took on a routine, almost perfunctory tone, with the same evidence presented, the same professional witnesses on the stand, and the same sense that it was all a fait accompli. Prosecutors rarely bothered to suggest that the Communists presented an imminent threat—because, according to the Vinson court, there no longer needed to be.

The court fed the hysteria in other cases as well. In Garner v. Los Angeles Board of Public Works, decided on the same day as Dennis, fifteen low-level employees of the city of Los Angeles had refused to sign an affidavit, required by the state of California, in which they were supposed to promise they were not members of the Communist Party, and had not been for the last five years. They were fired. The law applied to everyone from police officers to garbage men, and struck many, even at the time, as an unnecessary intrusion into the political views of employees who had no reasonable relationship to national security. But Justice Clark, responding for the majority, was unbothered, writing that the provisions “are a reasonable regulation to protect the municipal service.” Frankfurter, this time, joined Douglas and Black in dissent.

“Douglas and Black dissenting” became the watchword in the Red Scare cases, with Frankfurter occasionally joining. Another 1952 case involved three immigrants whom the government sought to deport because, at one point or another, each had joined, then left, the Communist Party. The court upheld the deportation, leaving Black apoplectic. The country, he said, was in more “desperate trouble on the First Amendment than it has ever been, much worse than during the Palmer Raids” of the late 1910s, during the first Red Scare. In all these cases, including those where Frankfurter himself dissented, the majority’s guiding approach was deference to the other branches when it came to national security—even though it was the court’s job to balance those issues against civil liberties.

Perhaps the most egregious case was that of Dorothy Bailey, a Black woman who had gone to work as a clerk for an obscure federal agency, the U.S. Employment Service, in 1939. She was laid off in 1947, then reinstated a few years later. Since she was technically a new hire, she was examined by a loyalty review board, which had been created in between her two periods of employment. A confidential informant had told the FBI that Bailey had been a secret

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