September 3, 2024
By Nicholas Mosvick
70 years ago, in the halls of Congress, Senator Joseph McCarthy of Wisconsin met an ignoble public close to his years-long efforts to investigate and excavate the threat of Communism from the American State Department. In the subsequent years and decades, few would remember individual cases, especially the ones where history proved McCarthy right. But many would remember the words uttered by U.S. Army lawyer Joseph Welch: “Have you no decency, sir?” McCarthy's legacy has been subsumed by the pejorative “McCarthyism” in our political discourse.
Free speech advocates have for decades have used “McCarthyism” as an invective against would-be censors and regulators of broad, uninhibited political discourse. The predicate to this, of course, is the understanding that McCarthy’s efforts over four years to investigate Communist spies in the State Department was overbroad, overzealous, and a “witch hunt” that targeted and wrongly limited the free speech, association and other rights of Americans.
This charge was always facile. Opposition to McCarthy was less about a principled defense of free speech and more about, as William F. Buckley Jr. put it, deep anger at McCarthy for being a “symbol of opposition to the idea of the open society, which is one of the intellectual fixations of the governing intellectual class.” In 2006, M. Stanton Evans wrote the finest reassessment of McCarthy, Blacklisted by History. In reevaluating the effort to undermine and destroy McCarthy’s credibility, Evans ultimately concluded that McCarty was “better and truer by far that the tag teams of cover-up artists and backstage plotters who connived unceasingly to destroy him” and found that “the truth he served, moreover, was of the great import–the exposure of people who meant to do us grievous harm, and of long-standing indifference toward this menace by many at high official levels.”
Beyond assessments of McCarthy's personal career, there are several ways to consider the legacy of “McCarthyism” and free speech 70 years later. One is to think about the major free speech cases of the period, particularly those that consider limits on membership in the Communist party. The keystone cases in that regard are Dennis v. United States and Yates v. United States, which considered the constitutionality of the Smith Act’s conspiracy provisions. Dennis upheld the Smith Act’s ban on “advocacy of the overthrow of the Government by force and violence,” with Chief Justice Fred Vinson noting that under the “Clear and Present Standard” of the Schenck case of 1919, “If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. The argument that there is no need for Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer.” In a powerful concurring opinion, Justice Robert Jackson warned of the consequences of treating the Communist Party as just another political party deserving of the protection of the First Amendment:
But Communist technique in the overturn of a free government was disclosed by the coup d'etat in which they seized power in Czechoslovakia. There, the Communist Party, during its preparatory stage, claimed and received protection for its freedoms of speech, press, and assembly. Pretending to be but another political party, it eventually was conceded participation in government, where it entrenched reliable members chiefly in control of police and information services. When the government faced a foreign and domestic crisis, the Communist Party had established a leverage strong enough to threaten civil war….A virtually bloodless abdication by the elected government admitted the Communists to power, whereupon they instituted a reign of oppression and terror, and ruthlessly denied to all others the freedoms which had sheltered their conspiracy.
Jackson understood the Communist problem to be one of a “nationwide conspiracy” which the Schenck “clear and present danger” was insufficient to deal with, given that as applied, “it means that the Communist plotting is protected during its period of incubation; its preliminary stages of organization and preparation are immune from the law; the Government can move only after imminent action is manifest, when it would, of course, be too late.” Further, it made no sense in Jackson’s mind that the founders would grant Congress more power to regulate commerce than to ensure its existence–”It is not to be supposed that the power of Congress to protect the Nation’s existence is more limited than its power to protect interstate commerce.”The problem, he thought, was that the framers did not anticipate the sort of internal conspiracy that plagued Western society in the form of Communism and if they had, they would not have extended First Amendment protections to it.
In No Liberty for License, the most important reassessment of the original meaning of the First Amendment in the last fifty years, scholar David Lowenthal understands Jackson’s concurrence to be based on “the Blackstonian principles which under the First Amendment” and grant of power to the national government of all necessary means “for dealing with hostile forces, foreign and domestic,” including “all efforts to encourage the violation of duly enacted laws, not excluding, of course, the greatest of all such efforts–the revolutionary overthrow of the republic itself.” Lowenthal rightly concluded that if the founders thought both the national and state governments had a right to suppress the dissemination of seditious libel, the logical extension of that power was to suppress any “open and organized calls for the overthrow of the republic.”
Just six years later, in Yates, the Court significant cut back on the Dennis ruling, deciding that “mere advocacy” was insufficient for a conviction under the Smith Act and that a jury must conclude, “the proscribed advocacy was not of a mere abstract doctrine of forcible overthrow, but of action to that end, by the use of language reasonably and ordinarily calculated to incite persons to such action.” The ruling made it essentially impossible to continue prosecutions under the Smith Act for either advocating of revolution or conspiracy to advocate revolution. By 1969, in Brandenberg v. Ohio, the Court adopted a per se rule that “mere advocacy” was protected speech under the First Amendment, even for violence. Lowenthal acerbically writes that, “With one stroke of the judicial pen [in Brandenberg], the First Amendment was made to require the toleration of organized threats to freedom.” This is, in part, because for conservative defenders of McCarthy, the central issue was whether or not those identified by McCarthy as members of the Communist Party were in fact members—for if there were, they could and should be appropriately punished for that status.
The relationship between “McCarthyism” and the First Amendment can also be understood as not simply about constitutional law and caselaw related to Communist Party membership and what speech, violent advocacy or association can be limited under our precedents due to national security considerations, but also as an inquiry into our free speech culture and the founding origins of American free speech. As a matter of constitutional culture, we should properly interrogate whether “McCarthyism” properly deployed as a pejorative for “witch hunts” in which government regulators wrongly assume that they can single out the bad speakers without chilling or harming the free speech we otherwise desire to project under a culture of robust and open inquiry.
Consider the legal historian Leonard Levy, a libertarian scholar who was disappointed to discover that the founding history showed that freedom of speech and press was not understood to “include a right to broadcast sedition by words” because the “security of the state against libelous advocacy or attack was always regarded as outweighing any social interest in open expression, at least through the period of the adoption of the First Amendment.” This, Levy understood, was because the First Amendment, contrary to Justice Holmes,“substantially embodied the Blackstonian definition and left the law of seditious libel in force.”
That principle, in Blackstone’s Commentaries, was a demarcation of the difference between subjecting the press to the “restrictive power of a licenser,” which would “subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government,” and the punishment under the law of “any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty.”
This matters precisely as it relates to significant underlying questions about the very purposes of free speech. Ontological and epistemological questions will always undergird inquirers into what is properly free speech—and the long debate sits between those traditional conservatives like Russell Kirk, William F. Buckley Jr. and Willmoore Kendall, who saw the First Amendment rights as being connect to republicanism and the purpose of contributing to the deliberate sense of the community and the maintenance of certain permanent truths, and the liberal Millian-Holsemian view of free speech as the open marketplace of ideas with no fixed or permanent truths limiting that search for knowledge. The traditionalist view is ably summarized in Kendall’s review of Walter Berns’ Freedom, Virtue, and the First Amendment in 1957: “When occasion arises, to deny to its citizens the freedom to utter that which is evil, and must, to that end, know and be prepared to act on the distinction between good and evil (which our Liberal-dominated Supreme Court persistently refuses to do); and that the only reason the Liberals think otherwise is that they possess neither the wisdom nor the knowledge nor the skills imparted by political philosophy.”
Kirk, in his posthumous volume, Rights and Duties: Reflection on Our Conservative Constitution, wrote that, “In no State of the Union, two centuries ago, would foul speech or publication have been tolerated by the public authorities–notwithstanding provisions in state constitutions for freedom of speech and press,” as free speech was had never been absolute in the United States. Looking at sources like Blackstone and early American treatise writers such as Justice Story and James Kent, understood this and it was only the shift in the 1950s whereby the majority of judges “held views of freedom of expression derived from John Stuart Mill and other liberals of the nineteenth century” expanded free speech to include previously excluded expression, including seditious libel and obscenity.
On the question of Communists, Kendall was absolutely clear in The Conservative Affirmation where the limits of free speech lay: “By the late 1930s, that is, by the end of second decade after the Communist Revolution, every free nation in the world, whether it realized it or not, faced the following question: Are we or are we not going to permit the mergence, within our midst, of totalitarian movements?” Kendall thought what really divided the McCarthyites and the anti-McCarthyites was really this question–whether Communism was a clear and present danger and whether we are committed to an “open society”—and he believed all political societies, all peoples, and especially the United States, was “founded upon what political philosophers call a consensus; that is, a hard core of shared beliefs…conceived of as a body of truths actually held by the people whose consensus it is, is incomprehensible save as we understand it to exclude ideas and opinions contrary to itself.” Thus, not all questions were open questions and to open the consensus to such basic matters that the society, in declaring it an open matter, would essentially commit suicide–this included Communism, which on its face, denied the consensus which defined American society.
Kendall’s most notable student, Bill Buckley, certainly appreciated and reflected this view of the First Amendment through National Review’s early to middle tenure. Buckley also was a cautious and tempered defender of McCarthy, pointing out often how there was no free-speech denying “witch hunt” in the 1950s. In another retrospective column in 1965, pointing to the case of Mrs. Annie Lee Moss, Buckley noted that, “'McCarthy’s charges against Mrs. Moss were laughed away —by the Subversive Activities Control Board that indeed, what do you know, ho ho ho, the Mrs. Moss Senator McCarthy said was a member of the Communist Party tums out, ho ho ho, to have been just that.” Over 40 years later, M. Stanton Evans, in his reassessment of McCarthy based on declassified files, Blacklisted, showed that Moss was indeed a Communist Party member.
A few years later in another column in 1970, Buckley provided a reassessment of the invective, “McCarthyism:”
During the period in question there was a reign of terror in the colleges, all right, and in the opinion press. But it was against anyone who thought that Senator McCarthy had here and there a good point to make. It was—I address myself now to everyone who is under 35 years old—ten times as difficult to say anything favorable about McCarthy as it is now to champion Spiro Agnew at Berkeley. McCarthy did scare a few dozen or a few hundred government officials, and he did often act recklessly. But he never interrupted a public meeting, never closed down nor was the cause of closing down, a college; never threw, nor encouraged others to throw, bombs; never destroyed, for wantonness' sake, the files of a professor, nor did any follower of his cause scholars to leave a campus in protest against the collapse.
McCarthy, Buckley admitted, could be reckless, but he was not a bomb-thrower, unlike the student radicals of the '60s. The left, Buckley thought, needed McCarthy to be a hobgoblin, a purveyor of a great reign of terror and a witchhunt of innocents. Buckley, sixteen years after publishing “McCarthy and His Enemies,” still believed there was no such “witchhunt.” As he told novelist David Caude in their dispute over “McCarthyism” on Firing Line in 1978, “Nobody ever went to jail in America for being a Communist. They went to jail, a few of them, for conspiring to overthrow the government by force or violence, and they went to jail for lying. The Hollywood Ten, for whom we shed a great many tears, all went to jail for exactly the same reason that Gordon Liddy went to jail. For contempt of court.”
Underlying the charge of “McCarthyism”, in other words, lay a crucial question for American constitutional democracy which the founding generation faced in 1798 with the Alien and Sedition Acts: what can and must the state do to ensure against internal threats to national security and to the body politic consistent with the First Amendment. The Federalists in 1798 and the Lincoln Administration during the American Civil War both relied upon a definition of free speech based on republican values—full and free participation in the broader political discourse which made up the deliberative sense of the community necessary to represent the common good in democratic politics. The state, under the republican definition of the purposes and limitations of free speech, did not need the Holmesian “marketplace of ideas” which would require it to allow membership and expression of ideas seeking to overthrow the government.
The history of Senator McCarthy and his best defenders,from Buckley to M. Stanton Evans, suggests that rather than a sprawling and reckless “witchhunt” of innocent parties which flagrantly violated the First Amendment, the 1940s and 1950s mission to ride the American government of Soviet spies and influence represented by McCarthy was both a righteous and constitutional effort that reminds us today both of the original parameters of the First Amendment and the crucial mandate of the state to designate such dangerous and poisonous ideology not be openly tolerated as requirement of our original Constitution and Bill of Rights.
Dr. Nicholas Mosvick is the Buckley Legacy Project Manager at the National Review Institute.