Source: Fourth International, New York, Vol.2 No.7, August 1941, pp.214-217.
Transcription/XHTML Markup: Ted Crawford and David Walters, 2004
Copyleft: Felix Morrow Internet Archive (www.marx.org) 2004. Permission is granted to copy and/or distribute this document under the terms of the GNU Free Documentation License
The text of the indictment drawn up by the United States Department of Justice and handed down by a federal grand jury in St. Paul, Minnesota, on July 15, appears on page 212.
This indictment makes strange reading, not only to the friends of the Socialist Workers Party, but to all politically literate people. Even the “left” liberal friends of the government (The Nation, New Republic, New York Post), haunted by memories of other frame-ups, are embarrassed by the government’s attempt to distort the anti-war and anti-fascist slogans of our party into criminal offenses.
These distortions, though fantastic, are nevertheless necessary to the government’s attempted frameup of the Socialist Workers Party. The wildly false charges in the indictment had to be concocted in order to provide a semblance of a basis for bringing the Socialist Workers Party under the stricture of laws which are in no way applicable to our party.
If the laws of the United States were to be observed by the present government, it could not find a way to indict us. The most the government could truthfully say of us is that we are revolutionists, irreconcilable opponents of its imperialist war plans. But the right to advocate revolution and oppose imperialist war is in no way prohibited by American law. Were revolutionists condemned by the law, we would scarcely have been permitted the legal existence which has been ours. What has actually happened is that the Roosevelt administration has reached the point where it is desperately attempting to suppress every voice raised against American entry into the war. When Roosevelt and Stimson go to the length of accusing so respectable a gentleman as Senator Wheeler of “verging on treason,” they will scarcely hesitate at engineering a frame up against the Socialist Workers Party.
In drawing up this indictment the Department of Justice, representative of the ruling bourgeois class of today, had to cope with the revolutionary past of that class. For. That class once led the most progressive forces in American society. It successfully carried through two revolutions. Those revolutions left their indelible marks on the laws of the United States, making it impossible for the Department of Justice to indict us except by doing violence to the law.
Neither of the two American revolutions could have been successful without the aid of the great masses of the American people; to draw them into the struggle necessitated democratic-revolutionary doctrines, and those doctrines became in part incorporated into the Constitution and legal traditions of the United States.
The Constitution, written after the first American Revolution, is far more conservative than the great inspirational document of the revolution itself, the Declaration of Independence. But the makers of the Constitution could not entirely escape the democratic doctrine of the Declaration: the Constitution was adopted only on condition that the Bill of Rights—the first ten amendments—became part of it.
The Bill of Rights expressed the democratic aspirations of the small farmers and working artisans of the cities. They had borne the brunt of the first American revolution. They were to reap few of its benefits. But they did. Succeed in securing the Bill of Rights.
The courts, serving the ruling class, have, often enough done violence to the Bill of Rights. Only by lawless violence can the courts pervert the plain and simple meaning of those first ten amendments to the Constitution. The first amendment of the Constitution says clearly:
“Congress shall make no law .... abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The Roosevelt administration has violated this Constitutional provision in its attempt to railroad to prison the leaders of the Socialist Workers Party.
This Constitutional provision rendered unconstitutional the Smith “Omnibus Gag” Bill, as the American Civil Liberties Union reminded Roosevelt when it appealed to him to veto that bill. However, the Civil Liberties appeal fell on deaf ears; Roosevelt signed the bill on June 29, 1940, and we are the first to be indicted under it. The truth is that the appeal for a veto to Roosevelt must be considered as rather naive since the key sections of the Smith Act, its “sedition” provisions—Congressman Howard W. Smith, the bill’s sponsor, the authority for this fact—were drafted by the Navy Department, that is, by the Roosevelt administration. But there can no doubt in any honest mind that the Smith Act violates the Bill of Rights. Here are the relevant portions of the Smith Act, which constitute Sections 9, 10 and 11 of Title 18 of the United States Code:
“9. Advocating disloyalty of military or naval forces of the United States (a) It shall be unlawful for any person, with intent to interfere with, impair or influence the loyalty, morale, or discipline of military or naval forces of the United States—
“(1) to advise, counsel, urge or in any manner cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States;
(2) to distribute any written or printed matter which advises, counsels, or urges insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States.
“10. Advocating overthrow of any government in the United States by force or violence - (a) It shall be unlawful for any person—
(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability or propriety of overthrowing any government in the United States by force or violence...
(2) with the intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability or propriety of overthrowing or destroying any government in the United States by force or violence;
(3) to organize or help to organize any society, group or assembly of persons who teach, advocate or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group or assembly of persons, knowing the purpose thereof.
“11. It shall be unlawful for any person to attempt to commit, or to conspire to commit, any of the acts prohibited by provisions of this Title.”
Quite apart from the fact that none of the activities of the Socialist Workers Party can be justly described in the language of the Smith Act, it is obvious at a first reading of these provisions of the Smith Act that they are unconstitutional. To make it a crime to “advocate, advise, teach” anything is a violation of the first amendment to the Constitution which guarantees freedom of speech.
Government Knows Smith Act Is Unconstitutional
The Department of Justice officials are admittedly aware of the unconstitutional character of the “sedition” provisions of the Smith Act. The Washington correspondent of The Nation, I.F. Stone, who talked to the Department of Justice officials, writes:
“‘Off the record’ at least one official engaged in the prosecution is prepared to admit that the Supreme Court may find the sedition provisions of the Smith Act unconstitutional. For the first time in peace since the Alien and Sedition Laws of John Adams a mere expression of opinion is made a federal crime. Under these provisions a man might be sent to jail for ten years because he circulated such un-American documents as the Declaration of Independence and Lincoln’s Second Inaugural, for both ‘advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government’ by force.” (The Nation, July 26, 1941.)
Feeling so unsure of the Smith Act, the Department of Justice did not limit the indictment to that Act, but also added another count under Section 6, Title 18, of the United States Code. As the Washington correspondent of The Nation says: “It is felt in the Department that though this (the Smith Act) may be too much for the court, the convictions will stand under Section 6.” The extremely cynical implications of this fact scarcely require comment; if they can’t get us under one law, the Department of Justice officials concoct additional charges—i.e., “facts,” to bring us under another law.
Section 6 has nothing whatsoever to do with the doctrines and activities of the Socialist Workers Party. It does not prohibit the right to advocate revolution. Such a prohibition could never have been adopted at that time. Section 6 was adopted by Congress on July 31, 1861—in the midst of the Civil War. The right to advocate revolution was then still explicitly recognized by the American bourgeoisie. And for good reason! The American bourgeoisie chanced to have formal legality on its side in its revolutionary struggle against the counter-revolution of the Southern slavocracy, by virtue of the fact that Abraham Lincoln, although securing only a minority of the votes, was legally elected president in November 1860 and legally took office in March 1861. But in the decades of political struggle leading up to the actual civil war, the bourgeoisie could not possibly have been sure that it would be legally in control of the state institutions at the moment when the “irresponsible conflict” finally took the form of armed battle. From 1848 to 1860, the Southern slavocracy was in well-nigh complete control of the federal state apparatus. Had the South not broken its solid front in the elections—there were four presidential candidates, three of them favorable or semi-favorable to the South—the election returns of November 1860 might have left the American bourgeoisie in the position of having to overthrow the legal government controlled by the Southern slavocracy.
Furthermore, above all in the first year of the war, the North was by no means assured of success. There was at least a likelihood that it would be defeated, or would be forced to an armistice or compromise, and the bourgeoisie would then have had to await a more propitious moment for crushing the slavocracy, perhaps in the form of a revolution against an administration controlled by or favorable to the slavocracy.
Such were the conditions under which, on July 31, 1861, Congress adopted Section 6 of Title 18 of the United States Code. It was directed not against the right to advocate revolution, but against the armed counter-revolution that was then being conducted by the Confederacy. Section 6 reads:
“If two or more persons in any State or Territory, or in any piece subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution or any law of the United States, or by force to seize, take or possess any property of the United States contrary to the authority thereof, they shall each be tined not more than $5,000, or imprisoned not more than six years, or both.”
On the same day that Congress passed this it adopted many other provisions against the Confederacy: one appropriating money to pay for arms for Unionists in Southern states; an appropriation for the regular army; an increase for the medical corps of the Navy; further powers to the president to declare a state or part thereof to be in a state of insurrection; an act reimbursing volunteers for expenses incurred in employing regimental or other bands, etc., etc. Not even the elastic judicial mind can with any plausibility claim that Congress was thinking of outlawing the right to advocate revolution, including socialist revolution. On the contrary, the attitude of the bourgeoisie, during the time when it was making the second American revolution, is symbolized by the fact that it commissioned Joseph Wedemeyer, Marx’s leading disciple in the United States, a colonel in the United States Army.
The Judicial Interpretation of Section 6
It would not be surprising if, after the Civil War, Section 6 had been systematically perverted by the courts despite its plain meaning. Interestingly enough, however, this is not the case.
Baldwin vs. Franks (7 SCR 656) is what jurists call the leading case under Section 6. The case had nothing to do with radicalism. It arose in the 1870’s out of the bitter conflict in California over the importation of cheap Chinese labor, which the defendants had been opposing. The Supreme Court freed the defendants and laid down a clear ruling as to the specific limits of the meaning of Section 6, a ruling which excludes the present use of Section 6 against us. The court said:
“The offense (any offense under the Section 6) ... means something more than putting the laws themselves at defiance. There must be a forcible resistance of the authority of the United States while its officers are endeavoring to carry the laws into execution.”
In short, only actual resistance to law enforcement was legally punishable.
Section 6 was invoked against trade unions and working class parties during the first World War. However, in those cases where the defendants during the trial challenged the applicability of Section 6, the higher courts agreed that the section was not applicable. In 1921, the latest decision of that period, Anderson et al vs. U.S. (273 FR 20), the US Circuit Court of Appeals approvingly quotes the ruling we have already cited from Baldwin vs. Franks and dismisses the count in the indictment under Section 6. This was a case against members of the IWW Similarly, in 1920, in the famous case of Bill Haywood and Vincent St. John (268 FR 795), the Circuit Court of Appeals had ruled that Section 6 could not be made to apply to violations of the Selective Service Act and the Espionage Act. The court said:
“Granting that Section 6 of the Penal Code, on which count is predicated, is broad enough in its terms to cover conspiracies to use force in preventing, hindering, or delaying the execution of the Selective Service Act and the Espionage Act, the penal provisions of these last-named acts constitute the specific directions of Congress for the punishment of all obstructions forcible or otherwise, of the recruiting and enlistment service. Congress did not intend, in the face of the constitutional prohibition, to inflict punishment twice for the same offense.”
The Smith Act, being later and more specific than Section 6 is, by the federal court decision just cited, obviously the only available basis for the indictment against us. The only reason the Department of Justice dragged in Section 6, as we have said before, is its own realization of the unconstitutionality of the Smith Act.
It is fantastic that an act adopted for the suppression of slaveholders shall now be invoked to suppress the party of proletarian emancipation. Fantastic, but—necessary, because the bourgeoisie, then leading the battle against slavery, is now the most reactionary force in society.
Even in the First World War cases we have just cited, in which the higher courts sustained the conviction of Bill Haywood, Vincent St. John and other working class leaders or counts brought under the so-called Espionage Act (which comes into operation only after an official declaration of War), the higher court felt it necessary to sharply warn against attempts to expand the meaning of Section 6. In the case of Bill Haywood already cited, the Circuit Court of Appeals wrote against the attempt to make the trade union activity of revolutionists an offense under Section 6:
“But the question now before us (on count 1) concerns the true meaning of Section 6. That was enacted long before the war. It must be enforced after the war is officially ended. Manifestly in each period, before, during and after, it must be given the same meaning and effect.
“So the question under Section 6 covers not only war supplies but also any peacetime supplies which the government might intend to buy... How are the laws of the United States executed? By officials upon whom the duty is laid. Performance of the duty cannot be delegated. Producers who have contracts to furnish the government with supplies are not thereby officials of the government. Defendants’ force was exerted only against producers in various localities. Defendants thereby may have violated local laws. With that we have nothing to do... Section 6 should not be enlarged by construction. Its prima facie meaning condemns force only when a conspiracy exists to against it against some person who has authority to execute and who is immediately engaged in executing a law of the United States” (Our italics).
This precisely-worded decision of the federal appeal court means, in our case, that there is no juridical basis for the Department of Justice to invoke Section 6 against our advocacy of Union Defense Guards and our other trade union activities, which are the main target of the Department of Justice.
We have no doubt that the Department of Justice officials, reading these cases in a vain attempt to find a more plausible basis for a case against us, must have sighed at the fact that the United States is not now officially at war, so the prosecution could use against us the wartime “sedition” provision of the so-called Espionage Act under which most of the cases against the labor movement were prosecuted during the first World War.
But despite everything that Roosevelt has so far been able to do, he has not succeeded in officially committing this country to war, and the law used against our comrades in 1917 and 1918 is not legally operative today, Roosevelt’s governments can prosecute us, therefore, only by violating the letter and spirit of the existing laws. Deliberately, cynically, they concoct charges which they and all politically literate people know to be false. On the same moral level as any cop in the pay of the local open-shoppers, the Department of Justice officials twist and pervert both the facts and the laws.
That the government is demonstrably lawless does not breed in us the illusion that our demonstration of its lawlessess will suffice to free us. The government in its lawlessness is not any the less powerful than when it is within the law. Having put its prestige at stake in this case the government will prosecute with utter ruthlessness. Reactionary governments are even more ferocious in their frameups than in their other activities. Witness the Dreyfus case, the Moscow trials, Sacco-Vanzetti, Tom Mooney—the list is very long.
The flimsiness of the government’s frameup against our party and Local 544-CIO reflects the panic and desperation of the Roosevelt administration as it drags the unwilling American people deeper into the war. The War Party knows that it cannot have its way by the voluntary assent of the masses. It can prosecute the imperialist war only by simultaneously conducting class war against the American labor movement. The first victims of this “war for democracy” will be the democratic rights of the American people, if Roosevelt has his way.
This frameup is an alarm signal to the American working class. And it has been so recognized by CIO’s political body, Labor’s Non-Partisan League which has warned:
“If this prosecution is successful, many informed observers are expecting other indictments of labor figures who do not toe the mark... If Minneapolis teamsters can be jailed for their opinions, so can anybody. That is why the case is of national importance to civil liberties.”
The fight to repel the FBI-Gestapo attack upon the 29 defendants is an integral part of the fight for the life and liberty of the American labor movement.
Last updated on: 8.1.2006