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The Militant, 27 December 1941

The Nation Calls Trial Attack on Free Speech

An Editorial in Dec. 13 Issue of Liberal Weekly Urges Progressives to Join Defense

From The Militant, Vol. V No. 52, 27 December 1941, p. 2.
Transcribed & marked up by Einde O’Callaghan for ETOL.


(Reprinted in full below is the Nation editorial of December 13, warning of the far-reaching implications of the Minneapolis prosecution of leaders of the SWP and of Local 544-CIO.)

December 15 is the 150th anniversary of the adoption of the Bill of Rights. We can think of no better way to celebrate it than by calling attention to the Minneapolis sedition trial. The prosecution of twenty-three Trotskyists for sedition and the conviction of eighteen of them on charges of conspiracy to create insubordination in the armed forces are challenges to every believer in civil liberties. They are an example of the very thing the Bill of Rights sought to make impossible — the imprisonment of men not for what they did but for what they thought and said.

Two aspects of the prosecution are of the greatest importance. The first is that the government contended that it did not need to wait for an “overt act” but could penalize the expression of opinions that might some day lead to overt acts. The second is that Assistant Attorney General Henry Schweinhaut, who is supposed to be a great champion of civil liberties, expressly disclaimed any intention on the part of the government to be bound by the Holmes-Brandeis theory of “clear and present danger.” This concept, developed in a series of dissents by the two great liberal jurists, holds that the expression of opinion may be prosecuted if there is a “clear and present danger” that it will lead an overt act.

Though Holmes and Brandeis are often invoked by the Department of Justice and Attorney General Francis Biddle, their guiding, principles, as often happens with the celebrated dead, are overlooked and evaded. Schweinhaut declared that the government was proceeding on the basis of conservative minority opinions of the Supreme Court which permit prosecution of opinion. Obviously the tiny Socialist Workers’ Party is no threat either to established government or to the loyalty of the army. Any attempt to proceed against it on the basis of what it is doing today must fall flat. Schweinhaut argued that the Bolshevik Party in Russia was also a tiny minority before the revolution. His argument reduced itself to the proposition that the Socialist Workers’ Party, though tiny too, might also make a revolution.

The assumptions implicit in this view should hardly need to be driven home again at this late date. The idea that revolutions are brought about by dangerous men and dangerous thoughts is a familiar one in Japan. We ought to be careful that it is not naturalized here. There was revolution in czarist Russia, not because of the tiny Bolshevik Party, but because long-standing oppression and the corruption and military defeat of czarism disgusted and alienated the. great mass of the people. It is in the correction of abuses and not in the suppression of revolutionary opinions that the safety of any social order lies. Were it otherwise, czarism, with its Siberian prisons for revolutionaries, would still be a going concern. We are ashamed to have to repeat these truisms now.

We believe that the precedents established by this conviction are dangerous to freedom of thought and expression in America. We believe that they open the door to the possible prosecution of other trade-union leaders on the ground that they belong to a “revolutionary” party. We believe this case all the more dangerous because the Department of Justice has picked a tiny unpopular minority as its legal-laboratory specimen in the experiment of grafting foreign ideas on American law. We believe that all progressives of whatever political orientation must join in the defense of the Minneapolis defendants or permit the establishment of a precedent that may some day be used against any of them.

These fears may seem exaggerated. They are much less exaggerated than the fears which led the common people of one state after another at the time of the ratification of the Constitution to demand its amendment by a Bill of Rights. Learned and legally conclusive arguments were brought forward to prove that these fears were unfounded, but experience has shown the wisdom in that clamor. Liberty is most easily preserved when the threat to it is small. Then is the time to act, and that time is now.

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