Spirit in Action
Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge
Marjorie Heins is the author of Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge, examining the roots of free speech by teachers as a special concern of the US constitution, and the lessons we can learn from the way these rights were compromised badly during the McCarthy Era. Through decades of work as a civil rights lawyer, Marjorie carries a passion and deep insight into the ways our rights are, or are not, protected by our government.
- Broadcast on:
- 10 Feb 2013
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- other
(upbeat music) ♪ Let us sing their song for the healing of the world ♪ ♪ That we may hear as one ♪ ♪ With every voice of every song ♪ ♪ We will move this world along ♪ ♪ And our lives will feel the echo of our healing ♪ - Welcome to Spirit in Action. My name is Mark helps me. Each week, I'll be bringing you stories of people living lives of fruitful service, of peace, community, compassion, creative action, and progressive efforts. I'll be tracing the spiritual roots that support and nourish them in their service, hoping to inspire and encourage you to sink deep roots and produce sacred food in your own life. ♪ Let us sing your dead song for the dreaming of the world ♪ ♪ That we may dream as one ♪ ♪ With every voice of every song ♪ ♪ We will move this world along ♪ - We've got the good fortune to welcome us today's Spirit in Action guest, Marjorie Hines. Her decades as a civil rights lawyer and with the American Civil Liberties Union have given her deep interest and a bird's eye view of freedom and repression as regards the fundamental rights established in the US Constitution. Her latest book scrutinizes the history and developments that led to a clear declaration by the US Supreme Court of the special status of free speech by educators because, as Justice Felix Frankfurter labeled them, teachers are the priests of our democracy. That's the name of Marjorie Hines' new book, Priests of our Democracy, the Supreme Court, Academic Freedom, and the Anti-Communist Purge. And it's an excellent examination of the ways our rights have been and can be undercut and sometimes championed. Marj provides both historical and legal insight into one of the worst civil rights crises of our nation's past, the McCarthy era, with lessons for political action in our future. Marjorie Hines joins us today by phone from New York. Marj, I'm delighted to have you here today for Spirit in Action. - Thank you, I'm delighted to be here. - Your new book is simply one of many books that you've written all around the area of civil liberties. Your civil liberties lawyer, how much do you practice as a lawyer versus doing your writing? I mean, they're obviously interlaced. - I stopped actively practicing law about five years ago, and I would say, I've written a few books, but tends to be a slow process. So actually, my previous book was 12 years ago. It doesn't get any faster. But I've written a few, and most of my legal career, I was at the American Civil Liberties Union. And in the '90s, I was specializing in First Amendment and censorship. - I tend to think that your leaning is probably in our country labeled as liberal. Although I think of the ACLU as really across the board, they're about civil liberties and not about liberal versus conservative. What's your take on that? - I think you're right. Well, first of all, not everybody who works at the ACLU agrees on a wide range of political issues. We had people on staff and on the board who ranged from far left to right-wing conservative libertarian, so it's very hard to characterize the ACLU. Having said that, of course, the general mistaken impression of the ACLU is a liberal or a left-leaning organization. It's liberal in the sense that it supports civil liberties and civil rights, which are usually associated with liberal causes, but it's not left. And one thing you learn about censorship is it's a universal impulse. Free expression for the ideas we don't like is counterintuitive and you see pressures for censorship coming from the left as well as the right. - And so when we're talking about free speech, which is the thrust of what we're talking about in this book, "Preece of Our Democracy," the Supreme Court, Academic Freedom, and the Anti-Communist Purge. When we're talking about free speech, that could be coming from the left or the right and being suppressed. And I think you do a good job toward the end of the book, talking about besides what happened with the communist purge, how it happened on the liberal side, ACLU was always on the side of civil liberties then in whether it was left or right. - That was the ACLU's principle. However, in the period that I mostly write about in "Preece of Our Democracy," the ACLU was often missing in action. And the ACLU, in fact, really starting even before the McCarthy era, post-World War II, anti-communist panics and anti-communist passions, even in the late 1930s and '40s, drove a lot of liberal organizations, such as the ACLU, to violate their own principles in the ACLU. You did that 'cause early as 1940, by purging communists from its leadership. And by the McCarthy era, one of the major leaders of the ACLU, Mars Ernst, was an informer for J. Edgar Hoover and the FBI. He was trying to protect the ACLU from being branded as communist leaning. So he flipped over to the other side and started informing on his colleagues. So the ACLU has a sort of check in history, didn't do so well in the McCarthy era. And one of the things I talk about, the book is really about academic freedom and the attacks on teachers and professors during this period and how the Supreme Court in response belatedly started recognizing the danger to free speech in general on academic freedom in particular that was done by the really massive loyalty investigations of public employees, black lists, merging attacks on communists with attacks on anybody who supported a cause that the Communist Party had once supported, such as civil rights, racial equality, anti-poverty, labor organizing. So it's a very repressive period and the repression as is typical in American history is against the left. It's not against the right. So if a censorship can come from either direction, the history of this country is, it's mostly directed at the left. - You know, I think it's hard for people today to fully appreciate back in the 40s, 50s, even before that, the immensity of the red scare and how much it was a black and white issue to so many people. I think it peaked in the late 40s, early 50s, but could you lay out how the ebb and flow of that was over the course of the century? Because it really was, I mean, the red scare was already happening, I guess, by the teens. - Well, certainly, just after the Bolshevik Revolution in Russia. So if you start with the history of socialism in America, it really starts in the late 19th century and you have a variety of socialist parties. And of course, you have the Communist Manifesto, which has tremendous circulation among working-class movements, labor movements, and the beginnings of a variety of socialist parties, including in America. And the American Socialist Party, led by Eugene Debs, was very popular, had a lot of populist support in the Midwest of this country. Then you get to the first period of really severe repression is around World War I. And it was not a popular war. President Wilson, in order to generate support for the war, really took quite dramatic steps to suppress opposition. And Congress passes this anti-pedition law, the first law in the United States, really, since the Alien and Sedition Acts of 1798, which were passed by the Federalists to try to suppress the Democrat Republicans, their political opponents. And there was such popular revulsion against the Alien and Sedition Acts that there was really nothing until just around the time of World War I, where Congress passes an espionage and Sedition Act. And under that act, anti-war protesters pass a fist of all kinds, people circulating, leaflets against the draft. And including Debs himself, a prosecuted criminally, essentially, for dissenting from government policy, and thrown in jail for long periods of time. And then on top of that, you get the Bolshevik Revolution. And the socialist movement is split between those who adhere to a democratic kind of socialism and those who are so entranced and inspired by the Russian Revolution. What they see is the overthrow of capitalism and the creation of a society that's going to be egalitarian and eliminate the kinds of extreme exploitation of workers that existed under capitalism. So there's a lot of excitement about this. And it takes a while for people to realize that even before Stalin comes into power, the Soviet Revolution is not democratic, it's a tyranny. And although it may have some very inspiring ideals, it's also got some very serious flaws, especially for people who are libertarian, believe in free speech, freedom of religion, against government suppression. So what you have in the '20s, really up until the populist front against fascism in the late 1930s, you have small communist parties, very sectarian, not with a lot of populist supporter influence. And you have a socialist party still struggling and trying to recover from the repression of the World War I treaty. By the '30s, the communist party is beginning to change its strategies. And instead of engaging in this constant sectarian warfare, who's the real Marxist and who's the real Leninist? And do we support Trotsky or Stalin? They adapt a popular front strategy of creating a lot of organizations which, in the history of this period, are usually termed front organizations where communists are in the leadership, they're doing the work. But the cause of the organization can be supporting the good guys in the Spanish Civil War or after the war gets won by the bad guys, the fascists, helping refugees that can be support for anti-racism campaigns. So lots of different front organizations, which have popular membership, very large popular membership. And fascism, of course, is the most urgent issue by the mid-1930s. Not only in Europe, where Mussolini and Hitler are in power, but in the US, there is a fascist movement and it's very scary. The popular front against fascism is really the peak of a communist party popularity in America. They had candidates running for office in New York City. They were a couple of communists on the city council. Big rallies, Madison Square Garden. Then the slogan was communism is 20th century Americanism. Lots of people joined the communist party as a fellow historian, Owen Shrecker, has written. It was the train that was leaving the station. If you were broadly concerned about fascism, civil rights, poverty, labor, a whole host of issues, the communists were the most dynamic. And people joined up. And a lot of intellectuals and a lot of teachers were drawn into this movement. A lot of them didn't last very long because despite all the good work on the home front that the communists were doing, the party leadership itself was beholden to Moscow and wholly apart from some of the atrocities that were happening in the Soviet Union in the 30s under Stalin. There was a kind of just embarrassment because the communist party leadership was constantly changing its line. There were anti-fascist one minute and then in 1939, Stalin makes a non-aggression pact with Hitler and suddenly they're not anti-fascist anymore. So it was a revolving door. People joined. People got disillusioned and left. Many remained progressive left-wingers. Some flipped to the other side and they just felt that the evils of communism were so appalling that at least as practiced in the Soviet Union that they joined the anti-communist crusade. So this brings us to the postwar period where during World War II, anti-communist crusades in the United States are not being highlighted because the Soviet Union is our ally and the Soviet Union is really holding the line against Hitler and Europe. But after the war, the US and the Soviet Union emerges the two world powers. And the Soviet Union is expansionist and is taken over Eastern Europe. The policy of the United States is belligerent and those who want to have peaceful coexistence are not dominating American foreign policy. And there start to be, in addition to this really false equation between Soviet expansionism, which is a threat. And domestic communism, which is not a threat. The Communist Party of the US may abstractly preach violent revolution, but there's no real threat that that's gonna happen in the US. So that's greatly exaggerated, but it's used as an excuse for these massive loyalty investigations. It's true that there was espionage and there were a small, relatively small number of communists in the US. If they employed in government who were passing documents, some of which may have had some intelligence value to the Soviet Union. So that was certainly a black mark on the Communist Party of the US. But for the most part, American communists were not engaged in espionage. They were not conspiring to have a revolution and they were doing good work. But what came to be called the McCarthy era and Senator Joe McCarthy was really a latecomer to this and it really, the kind of massive sweeping loyalty investigations really began under President Truman, who was trying, in 1947, was trying to persuade the population that the Democratic Party was soft on communism. So he was trying to take away the Republican Party's ammunition, basically. He instituted this massive loyalty program for all federal employees. So if I said to say that due process was not an outstanding feature of this program and anybody who was accused by whatever anonymous source of having been either in the Communist Party or in sympathetic association with a front organization is very broad. So you have a very lengthy period of loyalty investigations and heresy hunts in which people are called before state and federal investigating committees or as I described in pre-Safar Democracy, boards of education, board of education in New York City and institutes this whole procedure of interrogations of teachers, most of whom happen to be leaders of the radical teachers union who are pressing for improvements in the city school system and to racism in the city's textbooks. And it goes on for 20 years, really. The result is the left in the United States is really silenced. And I don't think the country has yet recovered from it. - That's an interesting feature that would you talk about the fronts and people who are interested in racial equality or wage equity or various other things which don't sound communist, they sound noble. How much of the repression was using the Communist accusation to try and repress people from doing this good work? Is there some way we can measure that or perceive it? - There's plenty of documentation, statements made and efforts made by government officials, legislators, Jay Edgar Hoover accused Martin Luther King of being a communist, segregationist in Congress and in state governments throughout the '50s and '60s are branding civil rights advocacy as communism. It was definitely a label that was used by the rights to suppress reform movements. - Your book occasionally strays out of the New York area, but that's the main focus of your book. You're dealing with the Red Scare in that area. Is that because the rest of the country wasn't nearly as bad? I mean, we had Joe McCarthy in Wisconsin, where I'm from, wasn't the repression in Wisconsin and Idaho and everywhere else equally as bad as what was happening in New York or was that a special case? - Yes and no. Actually, the book started as a kind of political and legal history of how the Supreme Court responded to the political repression of the 1950s. And I was interested in that because as an ACLU lawyer, the Supreme Court in the late '50s and early '60s really starts to develop a vision of the First Amendment as protecting individuals against punishment, guilt by association, which was the main vehicle that was used to deprive people of their livelihoods, basically, to isolate them. So certainly the repression was happening all over the country. New York was special, though, in that, in part, I think because New York City had such an active and dynamic, radical left-wing tradition, the repressive forces were also equally dramatic here. One example is that, it turned out when I was doing research in the archives in New York, that the New York City Board of Education was the only one in the country that required ex-communist teachers who were willing to admit that they had been in the Communist Party and maybe even were willing to go through this kind of ritual of repentance and recognition of their prior errors and sins. It also, beyond that, in order to keep their jobs, required them to name names of others, who they had seen at a meeting, worked with on a community campaign, into a May Day rally with. So the issue of naming names, which was a real moral dilemma for a lot of people across the nation. New York City Board of Education was the only one that actually required you to become an informer as a condition of keeping your job. And that led to some really dramatic interchanges between the interrogator for the city board and some of the teachers. But the actual reason that the book sort of has two strands woven into it. One is how the Supreme Court developed its perception of the First Amendment and particularly of academic freedom, 1930s, 1940s leading up to the McCarthy era and then the '60s, which is sort of the high point of the Warren Court's development evolution of understanding of the chilling effect of repressive laws and into the present time. So that strand in the book has a national focus. But a lot of the reason that the social history that comes into the book has a New York focus is it turned out three of the major Supreme Court cases came out of New York, two out of New York City and one out of Buffalo, New York. And so it became a way to organize a lot of material and give it some focus and talk about some individuals. So the first case, New York State in 1949 passes a law called the Feinberg law, which is a typical loyalty law drawing on previous laws, one of which came from the World War I era where the state passes a law, prohibiting anybody who was engaged in seditious activities or utterances on defined from being a public employee, and then a later law, which is specifically targets teachers with some more specific language about you can't believe in or be an associated with an organization that believes in the overthrow of the government by unlawful means. So the Feinberg law takes those two earlier laws, which hadn't been enforced in any really coherent bureaucratic fashion, and requires the state of New York bureaucracy to now set up a whole apparatus of loyalty investigations for every public employee, including teachers, and later the law gets amended to include higher education as well. It's really modeled on the Truman loyalty program of two years before. So group of teachers, the teachers union, parents, taxpayers, and the Communist Party, and some liberal legislators in New York, all foul suit to challenge this Feinberg law basically is a violation of the First Amendment. And there's three separate lawsuits. But ultimately, because of what we accurately call legal technicalities, only one case got to the Supreme Court. The lead plaintiff was a mass teacher, a quite brilliant mass teacher, named Irving Adler. He's really plaintiff because his name starts with A. So Adler versus Board of Education gets decided by the Supreme Court in 1952 in a truly terrible decision that upholds the Feinberg law basically because nobody has a right to a job and seemingly according to the majority of the court, in that case, anything the government wants to ask you about your political beliefs, your private life, what books you read, what concepts you go to, who you know, is fair game. But there is a dissent in the Adler case from, not surprisingly, you go black and William O. Douglas, who consistently in these early McCarthy era cases are writing these passionate defense. And Douglas goes into a fair amount of detail about how the Feinberg law is going to wreak havoc with academic freedom. And it's the first time you hear the term academic freedom or read it in a Supreme Court opinion. And he says the whole school system's going to be turned into a spying project with students, parents, teachers, administrators, all looking over their shoulders and suspecting and fearful and what was the meaning of the teachers' reference to Picasso or the grapes of wrath. And he coins the phrase, you know, a pall is cast over the classroom, the whole idea of education with this thought control law. So that's the first case that comes out in New York. - And the book we're talking about is Priests of Our Democracy, the Supreme Court Academic Freedom and the Anti-Communist Purge. It's by Marjorie Hines. You're listening to Spirit in Action on your host, Mark Helpsmeet. This is a Northern Spirit Radio production on the web at northernspiritradio.org, where you can find seven and a half plus years of our archives to listen and download. You can find place to comment. You can find links to our guests like to Marjorie Hines. You can find a place to post your comments. That's very important to us to have this conversation be two way. You can also leave a donation to us or think about making a donation to your local community radio station. They need your help bringing you an alternative voice in this country, something you're not gonna get on mainstream media. So again, we're with Marjorie Hines. Priests of Our Democracy is the book. You're talking Marjorie about the three different sets of laws and procedures that we're putting in place. We got one down. How about number two? - Okay, well, I'm talking about Supreme Court cases, which were brought to challenge particular laws and procedures. So we talked about this Feinberg law and how the Supreme Court writes this decision affirming and using a lot of Cold War and overcoming this rhetoric to affirm these loyalty investigations of teachers. The next one comes out of the New York City Higher Education System, the free, then we're free, Public Municipal Colleges, New York City College, Brooklyn, Queens and Hunter, which had traditionally been a way for poor and immigrant and working class kids to get the higher education that they were not, never gonna be able to afford at private colleges. The case arises because the Senate Internal Security Subcommittee comes to New York and they're sort of a Senate equivalent of the House on American Activities Committee. Everybody is vying for headlines in this period of extreme anti-communist panic. They, subpoena some professors from the Municipal Colleges how they got the names, either they were on the letterhead of the Teachers Union, some informer named them. Some had been interrogated 12 years earlier when in 1940 when New York State legislature created an anti-subversive investigating committee and most of these professors, well, more than a dozen, refused to answer the questions of the committee and they grounded their refusal in the Fifth Amendment, right not to be forced to testify against yourself, as opposed to the First Amendment and the reason they did that was going back to 1947 and the Hollywood 10 hearings that the House on American Activities Committee held to investigate alleged communist influence in the Hollywood movie industry, unfriendly witnesses, people who did not want to cooperate with these kinds of investigations of political beliefs, asserted the First Amendment and said, Congress can't pass laws that repress political opinions and activities and therefore Congress has no business investigating this. We stand on our First Amendment rights. Well, the courts, this is late 1940s with the federal courts were no help, they rejected those First Amendment claims and people went to jail for Contemptive Congress. Fast forward to 1952 when the Senate Internal Security Subcommittee comes to New York City, the First Amendment is really no longer available if you want to avoid going to jail for Contemptive Congress. So the Fifth Amendment had been lawyers for some of these embattled teachers and professors and other people who were called before investigating committees came up with the Fifth Amendment which protected you against Contemptive Congress but it didn't protect you against losing your job and these people in New York were fired, summarily 10 year processors of long standing, some of them brilliant popular professors, nobody'd ever accused them of subversive activity or trying to indoctrinate their classes. They're summarily fired and they challenged that on a variety of legal grounds, including just basic lack of due process and one of those cases gets to the Supreme Court, a Brooklyn College professor named Harry Slockhauer and the Supreme Court says the number one, you can't equate asserting the Fifth Amendment with a confession of guilt which was what was widely done in that period and number two, this was arbitrary, this violated his basic right to fair procedures due process but with a limited opinion the court said, did we not saying that the city couldn't fire him for being a communist, we're just saying that these procedures weren't adequate. So it's a very limited decision but at least, this is 1956 with the Slockhauer case, it indicates that the Supreme Court is beginning to recognize there are some real injustices going on, trying to without antagonizing Congress 'cause every time there was a decision that was in favor of somebody who'd been attacked as a communist, there was a huge outcry in Congress and the first press and a lot of the right-wing press would attack the Supreme Court so they were very sensitive to that but the Slockhauer decision is still an important moment and then the third case is back to the Feinberg law and we're now in the early 1960s, the scene moves from New York City to Buffalo which really is the Midwest, it's still in New York but it's really the Midwest, very different venue. State University of New York and Buffalo had been a private university and it becomes part of the state university system and suddenly everybody on the staff is required to sign something called the Feinberg certificate, basically a loyalty oath, you have to swear that you're not now, I never were a member of the Communist Party or advocated the overthrow of the government and if you were, you'd confess all that to the university president, presumably named names, although that wasn't part of the certificate. The New York State Higher Education authorities invented this certificate, this oath, it wasn't part of the original Feinberg law but they invented it, I think, just as an administrative way of implementing the Feinberg law which required them to basically conduct a loyalty investigation on every employee, it's quite a challenging task. So one of the wonderful stories in my book is about this guy, Harry Keishin. In 1952, Harry is a junior at Queens College at the time the Senate Internal Security Subcommittee comes to town and he watches some of his favorite professors being summarily fired for refusing to cooperate with the committee. He graduates from college, he joins the Navy, he goes to graduate school, he gets a PhD or almost he was all but dissertation PhD in English and he gets his first teaching job at the University of Buffalo. So he's a junior instructor at SUNY Buffalo State University of New York when all the faculty are confronted with the Feinberg certificate. And as he tells the story and he's still around, he eventually has to be fired from Buffalo for refusing to sign, became a professor fairly Dickinson, had a quite a successful career. But there he is at Buffalo and he sees an opportunity as he calls it to take his revenge on the '50s and he refuses to sign. And there's widespread opposition to this loyalty oath. This is now 1964. So the McCarthy era has much receded and there's pretty widespread appreciation across the country that the excesses of the McCarthy era were very damaging to the country. So the faculty is up in arms, they don't like this. But people are people and they need to keep their jobs and ultimately only five professors refused to sign the certificate and became plaintiffs in a lawsuit, a new lawsuit challenging the entire Feinberg law. Four English professors, one with a philosophy instructor named Newton Garver and his objection, he was a Quaker and his objection was the religious objection that most if not all Quakers have to boil the oaths of virtually any kind. So a variety of reasons why these five guys got together to be plaintiffs in this lawsuit. And most everybody, all the legal experts, were telling them you didn't have a chance. This law was upheld in 1952 in the advocate and the Supreme Court even in its more recent cases where it might strike down one or another aspect of a loyalty law, the Supreme Court continues to cite that advocate. Provingly, you really don't have much of a shot. But they were quite confident and none of these five had the quote unquote "taint of communism." They were basically good liberals and they had enough of a rebellious streak to be willing to risk their jobs for this principle. They lost in the lower courts. And finally, the case gets to the Supreme Court in January 1967. In a five to four decision written by-- in other words, only five of the nine justices on the court agreed-- decision written by William Brennan, K.S. University's Board of Regents. The Supreme Court overrules its previous decision in the other case. Strikes down the Feinberg law adopts a lot of the argument of Justice Douglas and his dissent in that original case and focuses on a couple of things-- the evils of guilt by association. We don't punish people for their associations. We punish them for personal actions that are in violation of the law. And the vagueness of the law-- those prohibitions against seditious activities and their thoughts-- and the importance of academic freedom because these were teachers who challenged the law. Justice Brennan goes on in very memorable language about academic freedom is a special concern, not just of teachers, but of all of us. Because teachers are the ones who educate the population to think critically, to be responsible citizens, to have open-minded attitudes. So academic freedom is a special concern of the First Amendment, which does not tolerate laws that cast a pole of orthodoxy over the classroom. So the case, although it came from New York, had nationwide repercussions. And my book describes the fallout of a Keishing case, which was two-fold. One was, there was, even in 1967, a lot of passionate reaction against the case, and criticism, sort of fueled by the dissent, which was written by Justice Tom Clark, who had been part of the Truman administration. He'd been an attorney general into Truman, and he was a real Cold Warrior. And he writes this very over-the-top dissent, which says the court is depriving America of its ability to defend itself against the evils of communism. And so there's a lot of criticism of the court, but there's also a lot of support at this point, 1967. People are realizing these loyalty programs really took a terrible toll. And the result of Keishing is the Supreme Court has finally not just chipped away one little due process problem in a loyalty program, but really invalidated the whole structure. So loyalty, oaths, and loyalty investigations around the country are really, if not completely halted, very much diminished after the Keishing case. Again, the book is, "Preece of our Democracy, the Supreme Court, Academic Freedom, and the Anti-Communist Purge." It's by Marjorie Hines here with us today for Spirit and Action. There's so many threads I want to follow this March. And one of them is, the idea that I get is this special place with academia and First Amendment rights. This basically doesn't exist in the public concept before the 1950s. And so the previous 200 years, it's not there. Obviously, we all know about free speech in the First Amendment and freedom of religion and so on. Was this a total revolution in our thinking about free speech? No, I mean, the concept of academic freedom goes back to the early part of the 20th century when boards of trustees of universities, which were largely populated by corporate executives, didn't like the politics of some of the professors who were either socialist or Christian activists, pro-labor organizing. And they would demand that these professors be fired. And there were a number of prominent cases, one from Stanford, where James Stanford, who was a one person board of trustees, basically demanded the firing of an activist professor. And then there was another case in 1915, where Scott Nearing, who went on to live a long life as a socialist activist, a pacifist, a vector nature celebrity. But he started out as a scholar. And he was teaching at the Wharton School of Business at University of Pennsylvania. He was actively advocating for labor reform, including an end to child labor. And the trustees basically forced the firing of Scott Nearing in response to that. A bunch of prominent professors around the country get together and form the AAUP, the American Association of University Professors. And the first thing the AAUP does is come out in 1915, with a statement of principles on academic freedom and academic tenure. And the AAUP continues to this day to link the two, because they felt that without tenure, without job security, professors would not be able to speak out, either in a classroom or in their scholarship or outside the world of the university in the realm of political activism. So the AAUP establishes these principles. And over the decades, they are basic concepts of academic freedom, especially freedom within obvious bounds. You have to teach the subject you're assigned. You have to be an adequate scholar. Freedom in the classroom, freedom to pursue research wherever they lead, without retaliation because you may come up with some unpopular idea. That core of academic freedom becomes widely accepted in universities across the country. But like a lot of good principles, it's often more honored in the breach than the observance. And when you get to a period like the 1950s, the universities and I write about those universities, almost universally caved in to the political pressures that they were getting from these committees, like Huac or the Senate Internal Security Subcommittee. So they didn't perform very well in practice when push came to shove, although the principles were well established. What was new in the 1950s and '60s is the Supreme Court starts taking these long accepted principles of academic freedom and waving them to some of these first amendment judicial decisions. - I also had this question about loyalty oaths. To some degree, it seems totally preposterous to me. I mean, if I was a subversive, I'm going to overthrow the government. I want to participate in that. I would have no compunction, perhaps, about lying about this. So it seems that loyalty oaths mainly contrary those people, as you said, like Quakers or other well-meaning people, activists, who simply don't want to lie and don't want to say something that would not be a correct representation of their ability. Has there been any soul searching in the American psyche about why we do something stupid like loyalty oaths? - Not a lot. And there's basically two kinds of loyalty oaths. There's an affirmative oath. There's even one in the Constitution. It's very vague. It prescribes what the President has to swear to support and defend the Constitution and so forth. And these are still very prevalent all over the country. And a lot of people do object to them, especially Quakers and other conscientious objectors. I object to them. I've had to sign them as a term of employment several times, but they're just offensive. They're worded in broad terms. I swear to support and defend the Constitution of the United States and the State of California against all enemies, foreign and domestic. And by the way, I take this oath voluntarily without any mental reservation. So it's a real kind of thought control thing. And for heaven's sake, putting aside the US Constitution, which started out by having provisions that institutionalized slavery, the state constitutions, I mean, in California, the state constitution have been amended to ban same sex marriage. I mean, there's lots of things in state constitutions that one might object to and still be a loyal citizen. But basically, the courts have upheld these affirmative oaths. The other kind of loyalty oath and the kind that was so prevalent in the 1950s is a negative oath. Well, you basically have to swear that you don't belong to XY organization. And you don't believe in ABC doctrine. Those oaths are really much more-- they're equally vague, often. But they're much more objectionable because they really do. They hinge on guilt by association. And as the Supreme Court pointed out in a number of cases, they flip the burden of proof that has become a fundamental part of American law, American understandings of justice, that the citizen is innocent until proven guilty, that citizens don't have an obligation to prove their innocence of some charge. And what oaths do, and whether it's a condition of employment or in one famous case, it was a condition of getting a property tax exemption. You had to find one of these negative oaths as somebody who is entitled to property tax exemption for whatever reason, in this case it was veterans. They're entitled to the exemption, but they don't get it unless they take these affirmative steps to prove their innocence. So there is a real kind of un-Americanness to this negative oath. The other thing is that, although you're absolutely right, that people who are truly subversive and disloyal will probably have no problem finding one of these things. In the '50s, these were used to threaten people with perjury prosecutions. So that, instead of going after somebody for being a member of the Communist Party, which was never technically a crime, you could go after them for perjury for signing an oath, which denied that they'd ever been a member of the Communist Party. And so that was the threat that was hanging over the heads of people who were forced to sign these things. I think most of us, if we have any glimpse of the history at all, are fairly aghast at what happened in the 1950s. This guilt by association in UNDO, someone like Senator Joe McCarthy who would make an accusation against you, blindly. No evidence, no proof, no due process, as you say. All of that were offended by from today's point of view. I think from one point of view, the reason we don't understand it is we aren't in the mentality of the 1950s where the evil country that's going to overtake us, the Soviet Union, they're going to close down the USA, take away all our freedoms, and put us in gulags or whatever. That way of thinking is so foreign to what we're doing now. But if we fast forward in time, we get to 2001, and we have an attack on the trade towers. And all of a sudden, the word "terrorist" pops up left and right. You pointed out in the book, and again, the book is a piece of our democracy, the Supreme Court, Academic Freedom, and the Anti-Communist Purge by Marjorie Hines. You point out, Marj, that what happened in 2001 has echoes of what was happening in the '50s, but it wasn't nearly as severe. Could you flush that out for me? What is an adequate comparison between what happened in the 1950s and what happened after 911? - I think the comparison is that, as you say, terrorism has come to replace communism, which no longer sends children down the spine, as a word that immediately demonizes and can have many different meanings. And when you start looking at different laws that relate to terrorism, it turns out the definitions, some of them are very broad. In the US, basically, the federal government, the Secretary of State, in most instances, has the authority to designate an organization as a foreign terrorist organization. And once you're designated, all kinds of terrible consequences. Flow from that, and anybody who gives material support under US law to an organization that's been so designated, is guilty of a crime. And material support is very broadly defined to include non-violent, and one important case that I write about, non-violent assistance to a group, for example, like the Kurdistan Workers' Party, which decides discrimination against Kurds and Turkey, and has both non-violent and violent aspects to it, and has been listed as a foreign terrorist organization by the Secretary of State, primarily because the US government foreign policy is interested in making friends with Turkey, and not in supporting the freedom struggle of the Kurds. So under this material support law, people who want to help the Kurds file petitions for human rights abuses of the United Nations are guilty of a crime, because that's considered material support, and the Supreme Court upheld that very broad law. So you do have an analogy where just sort of waving over the word terrorism without really looking at how it's being defined and used causes courts about oil branches of government, and a lot of the press, and popular opinion leaders as well, to stop thinking and to stop analyzing, and to just say this has to be prohibited in the interests of national security. But not the same, we're not in a McCarthy period. We don't have legislative investigating committees conducting inquisitions of people as to their political beliefs and associations. We don't have massive state and federal loyalty investigations in which anonymous informers, evidence is not disclosed. You don't know what you're being accused of, you don't have any opportunity to confront your accuser. I think the country has learned some lessons from the McCarthy era, and that is not happening now. We do have some analogies in terms of private census censorship, and this is a complicated one, because people who are not government officials, but private citizens, have a First Amendment right to advocate boycotts, to criticize, let's say they want to criticize the political science department of Brooklyn College. So to take an example that's in the news this week, people have a perfect First Amendment right to do, to criticize the political science department because they're sponsoring, co-sponsoring an event at the college, which includes some speakers who are advocating for boycott of Israel to protest Israel's policies and the occupied territories. So in the 50s, you also had a lot of private entrepreneurs in the business of blacklisting, and they would circulate these lists of organizations and individuals. This was especially prominent in the entertainment industry, movies as well as television, less so in life theater, and they had a huge amount of power because industries would rely on these lists and people would get fired unless they came in and fully confessed their pasts and names and so forth. And we do have some analogies today to especially in the period just after September 11th, the five or six years just after that, where when Cheney, among others, as a private citizen, organized a group that circulated blacklist of professors who had spoken at teachings or had published scholarly work that was supportive of the Palestinian cause, or that was simply not sufficiently unquestioningly supportive of U.S. foreign policy in the quote unquote war on terror. So there are some analogies there, but I think the biggest analogy is really the fact that, as I said before, I think we have not recovered from the McCarthy period, which was such a period of prolonged political repression of the left, and whether you are identified as a person on the left in terms of your critique of the status quo, political, economic, social, or whether you think of yourself as middle of the road or conservative, it's worth thinking about the role that the left plays in society, historically, in pushing for, in challenging the status quo, in pushing for reforms, generally in the direction of social justice and equality. If you don't have that presence as a respected part of the political debate, you're missing something and the society's gonna stagnate. And I argue it toward the end of the book. Now, the reason we are, in my view at least, so far behind Europe in some fundamental areas like universal healthcare, is that we don't really have, the left is not a consistent, recognized, a respected voice in American politics. We basically have the center and the right, and because the left is marginalized and demonized, the society tends to stagnate, and we have terrible problems making progress on basic issues. - Did any of the other countries, the developed countries, Europe and others, did they have any kind of parallel to the whole Red Scare and the repression that we had in the McCarthy period? - There's nothing comparable in Western Europe. - And somehow they continued to march forward and function, and they didn't get taken over by Russia, is that just because we protected them? I mean, was it in some way valuable that the US went through this strong anti-communist period? I guess maybe you're on the new left, so maybe that's not gonna be your opinion anyhow. - Well, you know, when I talked about this a little introduction to the book, I mean, I grew up in the '50s at the height of the McCarthy era in New York. My parents were not leftist, and I absorbed all the anti-communist theory around me, and learned in school that America could do no wrong, and then get to college, and it's the '60s, and you're looking at the civil rights movement, and your eyes are being open to the fact that America has not always done everything right, then the Vietnam War begins to escalate. So I became a member of the New Left, I protested against the Vietnam War, but I would hear people say, well, we're not gonna make the mistakes of the old left, but I had no idea what they were talking about, and it was only after the New Left had made its share of mistakes, and disappeared within a decade. I mean, the old left, if you start with the Socialist Party in the 19th century, the old left lasted more than half a century, in all of its various mutations before it was eventually really crushed in the '50s. So despite its many mistakes, the old left had much more of a surviving tradition than the New Left did. So I would not say that the New Left was totally appreciative of the old left, and in support of, or in opposition to, everything that was going on during the McCarthy era. But I do think that it's the last thing, the distorting effect on American politics. - One of the themes that I always look for is what the spiritual or religious overview of my guests, and of people just doing general good work in the world. What motivated people who've part of civil rights or peace work or civil liberties, as in your case, March? What would you say is your defining overview of the world that makes this crucial, important for us to work on? - Obviously, in the five books that you've written, your work as an ACLU lawyer, you're obviously putting your heart and soul into this. What is the motivating force behind that? - I'd certainly put my heart and soul into this last one, because as I say, it came out of my own curiosity as a member of the New Left, as to what the history of the left was. So I guess, I don't know from what age I would date this, certainly from young teenage years, the civil rights movement was very powerful. The influence, the focusing, I was part of the folk song club at my high school in Brooklyn. So, my background is my parents were Jewish atheists. So Jewishness is a funny thing because it's both a religion and an ethnic identity. So they rejected every aspect of the religiosity, Judaism or any other religion, but they identified ethnically as Jewish. I think one thing that interested me as I got deeper into the research and the reason why democracy was the extent to which the middle year from which I came from, sort of child of a New York City Jewish school teacher, played such an important role in what happened in terms of the purges of teachers in this city. So I really had no religious affiliation and I get to college and actually, I went to Cornell, the anti-war movement. That Cornell was strongly influenced by Quaker emphasis, strains. And I remember going to some friends meetings and I remember a wonderful Seder. So Seder comes out of Jewish tradition, but this was a very ecumenical Seder in which the story of the Jews emerging from bondage in Egypt became a kind of metaphor for the civil rights struggle. Freedom Seder is what it was. So that's sort of my background. AC is the libertarian egalitarian kind of values and the new left really changed me, changed my identity from the kid I had been and those values have stuck with me. - Again, the book we've been discussing as priests of our democracy, the Supreme Court, academic freedom and the anti-communist purge. Marjorie Heinz is the author who's been with us. You can find a link to her and about the book via northernspiritradio.org. You've been doing such great work Marjorie and I look forward to your next book. There's immense detail and I guess I'd say that you're a very conscientious researcher. One of the things that struck me really positively about it is even the bad guys in your book, you didn't try and make them out to be bad guys. I mean, they were the opposition and they did some things that we are horrified by now, but you have a generous spirit as well as an incisive mind and those are two great things that go together. So thank you so much for joining me for spirit and action. - Thank you very much for having me Mark. One more thing listeners, because we ran out of time, we couldn't include here all of what Marjorie Heinz had to share. So go to northernspiritradio.org to find this program and listen to a couple of bonus excerpts connected with it about such topics as how the US Supreme Court actually makes its decisions. The answer is in short, horse trading. And to hear more about Marjorie's work with the ACLU on such issues as police brutality and freedom of art expression. While you're visiting northernspiritradio.org, post a comment, make a donation, listen to other shows, let's connect and let's meet again next week for spirit in action. - The theme music for this program is turning of the world performed by Sarah Thompson. This spirit in action program is an effort of Northern spirit radio. You can listen to our programs and find links and information about us and our guests on our website, northernspiritradio.org. Thank you for listening. I am your host, Mark Helpsmeet, and I welcome your comments and stories of those leading lives of spiritual fruit. May you find deep roots to support you and grow steadily toward the light. This is spirit in action. ♪ With every voice ♪ ♪ With every song ♪ ♪ We will move this world along ♪ ♪ With every voice ♪ ♪ With every song ♪ ♪ We will move this world along ♪ ♪ And our lives will feel the echo of our healing ♪ ♪ Feeling ♪