The Red Menace, Revisited:

That's the title of my forthcoming Northwestern University Law Review review essay of Martin Redish's The Logic of Persecution: Free Expression and the McCarthy Era. You can find the whole text at SSRN.

Here's the abstract:

This is a review essay of Martin Redish, The Logic of Persecution. This book wades into the debate over the legacy of the anti-Communism of the late 1940s and 1950s. Its unique contribution is to approach this controversy from the perspective of First Amendment theory, taking into account recent evidence that the Communist Party, USA (CPUSA) was the American arm of the Stalinist Soviet enemy, and was heavily implicated in espionage against the United States.

Part I of this Review discusses the Smith Act prosecutions, in which CPUSA leaders were prosecuted for promoting violent revolution against the government. This Reviewer agrees with Redish's conclusion that the prosecutions were unconstitutional. However, in judging the Smith Act prosecutions, historians may consider not only constitutional issues, but the moral status of the defendants; whether freedom of expression suffered any lasting harm; and whether the goal of destroying the CPUSA's usefulness to the USSR for espionage was, in context, a particularly important one.

Part II of this Review evaluates the infamous "blacklist" by Hollywood movie studios of members of the CPUSA. Redish concludes, and this Reviewer agrees, it was entirely appropriate - under the First Amendment, and also morally - for businesses and individuals to boycott members of the Stalinist CPUSA.

Finally, Part III of this Review discusses whether state and local governments acted within their constitutional authority in refusing to hire CPUSA members as teachers. Redish concludes that school authorities did not violate the First Amendment when they excluded devoted Communists from teaching classes in subject areas that required teachers to pass along a liberal democratic perspective to their students. Part III reviews some objections to Redish's conclusion, and suggests that monitoring compliance with the assigned curriculum would have been an alternative means of accomplishing the government's agenda.

In writing this review, I found the historical issues at least as interesting as the First Amendment issues. I've blogged a bit about this before, so suffice for now to say that the history of the "Red Scare" was rather different than I had believed, much less than what one might pick up from the popular media. Here's a small taste:

But the fact remains that the most of those blacklisted[in Hollywood] were at least as morally complicit in Stalinist crimes as a typical American Nazi of the 1930s and 40s was complicit in Nazi crimes. Communist screenwriters, in particular, "defended the Stalinist regime, accepted the Comintern's policies and about-faces and criticized enemies and allies alike with infuriating self-righteousness .... screen artist reds became apologists for crimes of monstrous dimensions. ... film Reds in particular never displayed any independence of mind or organization vis-a-vis the Comintern and the Soviet Union." Nor was the screenwriters' Communist activism irrelevant to their jobs, as they actively sought to maximize Communist and pro-Soviet sentiment in films, and minimize the opposite.

And please, to avoid strawman arguments, look at the review before commenting.