THE COMMUNISTS AND CIVIL LIBERTIES

...Such is the story of Albert Goldman, of a man who sincerely and devoutly hoed in what he thought were the lush gardens of a new world, but who eventually discovered—as have so many others—that heavy penalties are imposed upon whoever mistakes the mirage for the reality...

...THE LAWVqW who Lpected a reversal thought 'omx_j()f"^i^^!i|al problems of the case...

...The Supreme Court "can, if it wants to, ignore its refusal to review the Trotskyist case: it can always find aspects of any case which can distinguish it from another case...

...No sooner was the indictment of the Trotskyists made public than the Kremlin agerits began a campaign in favor of Tobin and the prosecution...

...By 1934 he was again involved with communism—this time of the Trotskyite variety...

...A curt "certiorari denied" was the signalf for tlm^^detendants to pJe^re to serve th^ir sentences...

...ms A MATTER OF RECORD that in 1941 Daniel J. Tobin, president of the International Teamsters' Union, appealed to President Roosevelt for aid in his struggle to depose the Trotskyists in control of the teamsters' union in Minneapolis...

...President Roosevelt referred the matter to the Department of Justice and the indictment ^md coaviction of eighteen Trotskyists leaders under the Smith Act soon followed...

...Tlw ohars* that tke Smith Act cemlilHtat • danoer to free speech and free press was oUhei Ignarad or scoCtad at by the Cemmimiats and their fellow travoles...

...The appeal centered mainly around that question...

...The judges took the easiest way out...

...Not eiM word was ever said about' Iho unconstUutiMiaUtT of tiw Smith Act...

...What explar/ation irf there for the surprising attitudt of th^upreme Court...

...But if the Supreme Court can reverse itself, after rendering a written opinion, it can certainly reverse itself when its "opinion" is based on an implication derived from its refusal to review an opinion rendered by a lower court...

...A special pamphlet was issued to prove that the Trotskyists were "convicted for seditious statements and activities against our government and our war effort...

...He was thereafter disbarred...

...ItEFUSAL or the Supreme Court to grant certiorari, thus avoiding the necessity of writing an opinion discussing the problems raised in the brief on behalf of the Trotskyists, is very strong indirect evidence that the political aspect of the case influenced the Court...

...The lower court upheld the prosecution...

...qpHE FACTS AH...

...Resolutions were passed to that effect by imions under the control of the Communists...

...Eight years later he broke with his comrades over their betrayal of the Socialists in Germany...

...Had they considered the political aspects, they would not have been surprised in the least by the Court's refusal to reverse the convictioh...

...But should anyone be tempted to shed tears for the Stalinists because they will have to sp«fMl a few years behind bars, let him remember that the Communiste are largely responsible for the fact that the Government was able to use time Smith Act to indict and convict tiiem...

...On the eve of Pearl Harbor, he, along with other Trotskyite leaders, was indicted under the Smith Act and served sixteen months in prison...

...Bv^t if there is a moral to Ali)ert Goldman's story it is this: Do not moralize: "Let him who is without sin cast the first stone...

...Had the Communist party, at the time the Trotskyists were indicted under the Smith Act, carried on the same kind of campaign against the Smith Act that they are waging now, it is almost certain that the Supreme Court would have consented to review the conviction of the Trotskyists and would have reversed that conviction on the ground that the "clear and present danger" doctrine is applicable to that, statute...

...SIMPLE: In 1925 he was a promising young attorney who soon thereafter became caught up in the Communist movement...

...They did not want to reverse the conviction because they did not want to displease Stalin and his friends...

...An appeal was filed on behalf of the defendants, first with the Circuit Court of Appeal.*) of the Eighth Cireuit and then with the Supreme Court of the United states...

...FOr the first time H was argoed that tte '^lear and present danger" doctrine was applicable to tiwt Act...

...The Circuit Court of Appeals, as was expected, decided in favor of the Government...

...they did not want to write an opinion offering reasons for holding the Holmes doctrine inapplicable to the Snuth Act because that would have constituted a sharp change on the part of the liberal judges from their adherence to that doctrine...

...True, the refusal of the Supreme Court to review the decision of the Circuit Court of Appeals of the Eighth Ciicuit —which specifically held that the Holmes doctrine is inapplicable to the Smith Act—definitely implied that the higher court agreed with that opinion...

...Such a ruling, would have helped the cause of civil liberties tremendously and would undoubtedly have prevented an Indictment of the Communists...

...For Civil Liberties Only...

...The attorneys for the Stalinists may offer excellent arguments against the constitutionality of the Smith Act and for the prtH?osition that the "clear and present danger" doctrine is applicable to that statute...

...It should be remembered that at the time the appeal reached the Supreme Court, the U. S. Government and the Soviet Government were on the same side of the conflict against Hitler, and maintained very friendly relations with one another...

...He became personal counsel to Leon Trotsky himself, and defended that'old Bolshevik at the Dewey Commission hearings into Trotsky's activities during the period of the Moscow trials...

...THE COMMUNISTS AND CIVIL LIBERTIES By ALBERT GOLDMAN IF THE SUPREME COURT of the United Stain uplraldi the conviction, of the Kremlin agents recontiy triwl before Judge Medina it .-will be a Wow to the cause ol freedom oi speech and.of press...

...After the Trotskyists went to jail, the Stalinists energetically opposed every attempt to enlist the aid of the labor movement in getting them a pardon...

...The prosecution charged that the Trotskyists made speeches and published and distributed articles and pamphlets advocating the violent overthrow of the Government...

...The conviction of the Communists may be upset either by the Circuit Court of App(-als or by the Supreme Court on grounds other than the "clear and present danger" doctrine...

...Many arguments were presented, but the one that convinced mnny competent lawyers that the Supreme Court would reverse the conviction was that dealing with the "clear and present danger" doctrine...

...Before, during and after the trial, Stalinist publications were full of articles attacking the indicted Trotskyists as enemies of our government and of our "great ally...

...Attorneys for the Trotskyists denied that and argued further that even if that were trtte it is incumbent upon the prosecution to prove that the speeches were made and tiie writings distributed under circumstances creating a clear and present danger that the Government stood-.a chance of being overthrown...

...Should our hopes not materialise, then the teor that we shed when it i.< announced that the Communists muit go to jail should be clearly market...

...An opinion discussing the questions raised could, under ordinary circumstances, be ex* pected with absolute certainty...

...The effort of the Communists to seciu°e the conviction of the Trotskyists indicted under the Smith Act must necessarily have penetrated into the allegedly secluded reafms of the Justices of the Supreme Court, and convinced them that to rule in favor of the Trotskyists would be considered an unfriendly act to the Stalinists...

...For the sake of civil liberties, it will be best if the Supreme Court frees the Communists on the ground either that the Smith Act is unconstitutional or, if constitutional, that the "clear and present danger" doctrine applies to that act (i.e., that there is no immediate danger of the Government being overthrown...

...The problems raised In the brief were too important to be ignored...

...The Supreme Court, contrary to all expectations, did nafPyen want to review the caafe...

...Essentially, however, they can only repeat the arguments made by Osmond K. Fraenkel and the attorneys associated with him in the brief presented to the Supreme Court on behalf of the Trotskyists who were "indicted and convicted under the Smith Act in Minneapolis in 1941...

...Naturally, if the Government had to prove that proposition it would have to dismiss the case against the small group of Trotskyists...

...For the first time the eonstHutionaUty of the Smith Act was challenged...

...At that time also the in* fluence of the Communists and their fellow-travelers was great everywhere in the administration...

...The best way out was to say nothing except "certiorari denied...

...Every attempt on the part of the Trotskyists to gain support in the labor movement and among liberals was strenuously fought by Stalin's henchmen...