Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P6 pps

COMMON-LAW PLEADING
The system of rules and principles that governed
the forms into whi ch parties cast their claims or
defenses in order to set an issue before the court.
The system prevailed in the
COMMON-LAW
COURTS
and in many U.S. states until it was
replaced by statute with a procedure called
CODE
PLEADING
in the nineteenth century. Those states
that do not have systems of code
PLEADING today
follow the pleading procedures established by
the rules of
CIVIL PROCEDURE adopted for the
federal district courts in 1938.
During the twelfth and thirteenth centuries
a person with a grievance sought a
WRIT from
the king ’s chief minister, the chancellor. The
writ ordered the
DEFENDANT to submit to the
plaintiff’s demands or to appear and answer
the charge made against him or her. Over a
period of time, the format of the particular writs
began to become standardized and were called
FORMS OF ACTION. There were different writs for
different types of actions.
Thepurposeofthewritwastoassertthe

court’s authority to hear the dispute and to
demand the presence of t he defendant. In this
regard it corresponded to the modern
SUMMONS.
The
PLAINTIFF then had to s t ate the claim against t he
defendant. For the pleading to be valid t he pla intiff
had to use exactly those words permitted by the
form of a ction sel ected. S ome f orms o f ac tion,
such as trespass, became immensely popular
because they allowed more variation in the fact s
pleaded than o ther forms. If a plaintiff sele cted a
writ that did not fi t the particular case the a ction
was thrown out of court. If there were no writs for
some kinds o f actions and the chancellor r efused
to devise one then the aggrieved person could find
no relief at all in t he roya l c our ts.
A defendant faced a similar array of
established responses. The defendant could, for
example, deny the plaintiff’s right to legal relief
even if the facts alleged were true. Such a
response was known as a demurrer. A defendant
couldchoosetoentera
DILATORY PLEA,which
argued against the court’s authority to hear that
particular case rather than directly objecting to
the plaintiff’s claim. A third option was to enter a
PLEA IN BAR which denied the plaintiff’srightto
maintain the action at all. An example of such a
PLEA was a traverse, an assertion that some

essential element of the plaintiff’scasewas
lacking or untrue. Another plea in bar was
CONFESSION AND AVOIDANCE which stated that
additional facts rendered the claim unenforce-
able, even if the plaintiff’s facts were true.
Like the plaintiff, the defendant was limited to
choosing a single position. The alternative
responses were m utually exclusive even though
they were not necessarily contradictory. For
example, if the defendant pleaded a confession
and avoidance he or she conceded the a ccura cy of
the plaintiff’s version of the facts and would not be
allowed to contest those f acts. T he iss ue became
the new facts that t he defendant h ad assert ed in
order to avoid the e ffect of the plaintiff’sallegation.
The plaintiff had t o argue against the newly
introduced fac ts by entering a demurrer, a traverse,
or anot her c onf ession and avoidance.
Eventually the system of
COMMON-LAW
PLEADI NG
fell into an established order that
proceeded alternatively f rom plaintiff to de-
fendant and back to plaintiff. The plaintiff first
stated the claim in a declaration and the
defendant answered in a plea. The plaintiff
was permitted to respond with a re plication.
Then came the d efendant’s rejoinder, the
plaintiff’s surrejoinder, the defendant’srebut-
ter, and the plaintiff’s surrebutter. No distinc-

tive names were given to any pleadings used
beyond that stage.
The system of common-law pleading even-
tually became so encrusted with requirements
and risks that actions were won or lost on the
fine points of pleading rather than on the merits
of a party’s case. The insistence on reducing
every case to one claim and one answer created
more problems than it solved. As a result, in
1948 many states began enacting code pleading,
while other states eventually adopted rules of
pleading patterned on the rules of federal civil
procedure.
COMMON-LAW TRUST
More commonly known as a business trust or a
Massachusetts trust. A business organization for
investment purposes by which trustees manage
and control property for the benefit of beneficiaries
who are protected against personal liability for any
losses incurred.
COMMON PLEAS
Trial-level courts of general jurisdiction. One of the
royal common-law courts in England existing since
the beginning of the thirteenth century and devel-
oping from the Curia Regis, or the King’sCourt.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
38 COMMON-LAW PLEADING
In the United States only Pennsylvania has
courts of COMMON PLEAS with the authority to
hear all civil and criminal cases. In most states

courts of common pleas have been abolished
and their jurisdiction transferred to district,
circuit, or superior courts.
For some time after the Norman Conquest of
England in 1066, parties seeking justice from the
king were greatly inconvenienced by the fact that
the king was constantly on the move and
frequently abroad. Scholars have speculated that
the king was attempting to consolidate his power
and that feeding and financing the royal house-
hold could be accomplished only by continually
moving throughout the land. Parties could
submit a dispute to a court held
CORAM REGE,
before the king himself, only by pursuing the king
in his travels. The barons finally forced the issue
with King John in 1215 when they insisted on the
following provision in the
MAGNA CARTA: “Com-
mon Pleas shall not follow our court but shall be
held in some certain place.” That certain place
came to be Westminster, where some legal
business was already being handled by the end
of the twelfth century. There the Court of
Common Pleas, also called Common Bench,
heard all
REAL ACTIONS and common pleas—
actions between subjects that did not involve
royal interests. It had no authority to hear
criminal matters which were the special preroga-

tive of the King’s Bench. The Court of Common
Pleas consisted of a chief justice and four (later
five) associate justices. Appeals and their deci-
sions were taken to the King’s Bench but later to
the Exchequer. The court was consolidated with
the other high courts of England by the
JUDICATURE ACTS in the late nineteenth century.
COMMON SCOLD
A person who frequently or habitually causes public
disturbances or breaks the peace by brawling or
quarreling.
Scolding, which was an indictable offense
at
COMMON LAW but is obsolete today, did not
involve a single incident but rather the repeated
creation of discord.
COMMON STOCK
Evidence of participation in the ownership of a
corporation that takes the form of printed
certificates.
Each share of
COMMON STOCK constitutes a
contract between the shareholder and the
corporation. The owner of a share of common
stock is ordinarily entitled to participate in and
to vote at stockholders’ meetings. He or she
participates in the profits through the receipt of
dividends after the payment of dividends on
PREFERRED STOCK. Shares of common stock are
the

PERSONAL PROPERTY of their holder.
COMMUNIS ERROR FACIT JUS
[Latin, common error makes law.] Another
expression for this idea is “common opinion,” or
communis opinio. In ancient Rome, the phrase
expressed the notio n that a generally accepted
opinion or belief about a legal issue makes that
opinion or belief the law. Judges have pointed out
that universal opinion may also be universal error.
Until the error is discovered, however, the belief
continues to be the law. The concept of communis
opinio is not especially favored by contemporary
U.S. courts.
COMMUNISM
A system of social organization in which goods are
held in common.
COMMUNISM in the United States is some-
thing of an anomaly. The basic principles of
communism are, by design, at odds with the
free enterprise foundation of U.S. capitalism.
The freedom of individuals to privately own
property, start a business, and own the means of
production is a basic tenet of U.S. government,
and communism opposes this arrangement.
However, there have been, are, and probably
always will be communists in the United States.
As early as the fourth century
B.C., Plato
addressed the problems surrounding private
ownership of property in the Republic. Some early

Christians supported communal principles, as did
the German Anabaptists during the sixteenth-
century religious Reformation in Europe.
The concept of common ownership of
goods gained a measure of support in France
during the nineteenth century. Shortly after the
French Revolution of 1789, François-Noël
(“Gracchus”) Babeuf was arrested and executed
for plotting the violent overthrow of the new
French government by revolutionary commu-
nists. Etienne Cabet inspired many social
explorers with his Voyage en Icarie (1840),
which promoted peaceful, idealized communi-
ties. Cabet is often credited with the spate
of communal settlements that appeared in
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COMMUNISM 39
mid-nineteenth-century North America. Louis-
Auguste Blanqui offered a more strident version
of communism by urging Fr ench workers
during the 1830s to organize insurrections and
establish a dictatorship for the purpose of
reorganizing the government.
Communism received, however, its first
comprehensive intellectual foundation in 1848,
when Germans
KARL MARX and Friedrich
Engels published The Communist Manifesto. As
technology increased and industry expanded in
nineteenth-century Europe and America, it

became clear that the
GENERAL WELFARE of laborers
was not improving. Although the new democratic
governments gave new freedoms to workers, or
“the proletariat,” the capitalism that came with
democracy had created different means of
OPPRESSION. By drawing on existing theories of
materialism, labor, and historical evolution, Marx
and Engels were able to identify the reasons why,
despite periodic drastic changes in government,
common laborers had been doomed to abject
poverty throughout recorded history.
In the first chapter of The Communist
Manifesto, Marx and Engels argued that human
history was best understood as a continuing
struggle between a small exploiting class (the
owners of the means of production) and a larger
exploited class (laborers in factories and mills
who worked for often starvation wages). At any
point in time, the exploiting class controlled the
means of production and profited by employing
the labor of the masses. In the capitalism that
developed alongside democracy, Marx and Engels
saw a progressive concentration of the powers of
production placed in the hands of a privileged
few. Although society was producing more goods
and services, the general welfare of the middle
class, they believed, was declining. According to
Marx and Engels, this disparity or internal con-
tradiction in capitalistic societies predicted capit-

alism’s doom. Over time, as the anticipated
numbers of the middle class, or “bourgeoisie,”
began to decrease, the conflicts between laborers
and capita lists would sharpen, and social revolu-
tion was inevitable. At the end of The Communist
Manifesto, Marx and Engels wrote that the transfer
of power f rom t he few t o t he man y could o nly t ake
place by force. Marx later retreated from this
position an d wrote that it was possible f or this
radical c hange to take place peacefully.
The social revolution originally envisioned
by Marx and Engels would begin with a
proletariat dictatorship. Once in possession of
the means of production, the dictatorship
would devise the means for society to achieve
the communal ownership of wealth. Once the
transitional period had stabilized the state, the
purest form of communism would take shape.
Communism in its purest form would be a
classless societal system in which property and
wealth were distributed equally and without the
need for a coercive government. This last stage
of Marxian communism has as of the early
2000s never been realized in any government.
Russia
In October 1917, VLADIMIR LENIN and Leon
Trotsky led the Bolshevik party in a bloody
revolution against the Russian monarch, Czar
Nicholas II. Lenin relied on violence and
persistent aggression during his time as a

Russian leader. Although he professed to being
in the process of modernizing Marxist theory,
Lenin stalled Marx’s co mmunism at its transi-
tional phase and kept the proletariat dictator-
ship to himself.
Lenin’s communist philosophy was desig-
nated by followers as Marxist-Leninist theory in
1928. Marxism-Leninism was charac terized by
the refusal to cooperate and compromise with
capitalist countries. It also insisted upon severe
restrictions on
HUMAN RIGHTS and the exter-
mination of actual and supposed political
opponents. In these respects, Marxist-Leninist
From 1950 to 1954,
Senator Joseph
McCarthy led highly
publicized hearings
that focused upon
alleged Communist
infiltration of the U.S.
government and
military.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
40 COMMUNISM
theory was unrecognizable to democratic socia-
lists and other followers of Marxist doctrine, and
the 1920s saw a gradual split between Russian

communists and other European proponents of
Marxian theory. The Bolshevik party, with Lenin
at the helm, renamed itself the All-Russian
Communist party, and Lenin presided over a
totalitarian state until his death in 1924.
JOSEPH STALIN succeeded Lenin as the Com-
munist party ruler. In 1924, Stalin established
the Union of Soviet Socialist Republics (U.S.S.R.)
by colonizing land surrounding Russia and
placing the territories within the purview of the
Soviet Union. The All-Russian Communist party
became the All-Union Communist party, and
Stalin sought to position the Soviet Union as the
home base of a world revolution. In his quest for
worldwide communism, Stalin sent political
opponents such as Trotsky into exile, had
thousands of political dissidents tortured and
murdered, and imprisoned millions more.
Stalin saw the Soviet Union through
WORLD
WAR II
. Although it joined with the United States
and other democratic countries in the fight
against Nazism, the Soviet Union remained
strongly opposed to capitalist principles. In the
scramble for control of Europe after World War
II, the Soviet Union gained power over several
Eastern European countr ies it had helped
liberate and placed them under communist
rule. Bulgaria, Czechoslovakia, Hungary, East

Germany, Poland, and Romania were forced to
comply with the totalitarianism of Stalin’s rule.
North Korea was also supported and influenced
by the Soviet Union. More independent com-
munist governments emerged in Yugoslavia and
Albania after World War II.
For nearly 50 years after the end of World
War II, the Soviet Union and the United States
engaged in a “cold war.” So named for the
absence of direct fighting between the two
superpowers, the
COLD WAR was, in reality, a
bloody one. The Soviet Union and the United
States fought each other through other coun-
tries in an effort to control the influence and
expansion of each other’s influence.
When a country was thrown into
CIVIL WAR,
the Soviet Union and the United States aligned
themselves with the competing factions by
providing financial and military support. They
sometimes even supplied their own troops.
The United States and Soviet Unio n engaged in
war-by-proxy in many countries, including
Korea, Vietnam, El Salvador, Nicaragua,
Guatemala, and Angola.
Cuba officially adopted communism in
1965 after Fidel Castro led a band of rebels in
an insurrection against the Cuban government
in 1959. Despite intense opposition by the

United States to communism in the Western
Hemisphere, Cuba became communist with the
help of the Soviet Union.
China
Communism was also established in China. In
1917 Chinese students and intellectuals, in-
spired by the Bolsheviks’ October Revolution,
began to study and promote Leninist Marxism.
China had been mired in a century-long civil
war, and many saw Lenin’s brand of commu-
nism as the solution to China’s internal
problems. In 1919, at the end of
WORLD WAR I,
China received a disappointing settlement from
Western countries at the Versailles Peace
Conference. This outcome confirm ed growing
suspicion of capitalist values and strengthened
the resolve of many Chinese to find an
alternative basis for government.
On July 1, 1921, the Chinese Communist
party (CCP) was established. Led by Chinese
intellectuals and Russian advisers, the CCP
initially embraced Russia’s model of commu-
nism and relied on the organization of urban
By 1949, when this
photograph was
taken, Mao Zedong
and the Chinese
Communist Party
had established

Beijing as the capital
of China and declared
the People’s Republic
of China as the new
government.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COMMUNISM 41
industrial laborers. By 1927, CCP membership
had grown from fewer than 500 in 1923 to over
57,000. This increase was achieved in large part
because the CCP had joined with another
political party, the Kuomintang (KMT). KMT
leader Chiang Kai-shek and KMT troops
eventually became fearful of CCP control of
the state, and in July 1927, the KMT purged
communists from its ranks. CCP membership
plummeted, and the party was forced to search
for new ways to gain power.
Throughout the late 1920s and early 1930s,
the CCP sought to change its strategies. The party
was divided between urban, Russian-trained
students and a wing made up of peasants led by
Mao Zedong. At the same time, the CCP was
engaged in battles with the KMT over control of
various cities, and several CCP attempts to
capture urban areas were unsuccessful.
Mao was instrumental in switching the
concentration of CCP membership from the
city to the country. In October 1934, the CCP

escaped from threatening KMT forces in
southern China. Led by Mao, CCP troops
conducted the Long March to Yenan in the
north, recruiting rural peasants and increasing
its popularity en route. In 1935, Mao was
elected chairman of the CCP.
Japan’s invasion of China in 1937 spurred a
resurgence in CCP popularity. The CCP fought
Japanese troops until their surrender in 1945.
The CCP then waged civil war against the KMT.
With remarkable organization and brilliant
military tactics, the CCP won widespread
support throughout China’s rural population
and eventually its urban population as well. By
1949, the CCP had established Beijing as the
capital of China and declared the People’s
Republic of China as the new government.
Chinese communism has been marked by a
willingness to experiment. In 1957, Chairman
Mao announced China’s Great Leap Forward,
an attempt to advance industry within rural
communes. The program did not flourish, and
within two years, Mao concluded that the
Soviet Union’semphasisonindustrywas
incompatible with communal principles. Mao
launched an ideological campaign in 1966
called the Cultural Revolution, in which
students were employed to convert opponents
of communism. This campaign also failed, as
too many students loyal to Mao carried out

their mission with violent zeal.
After Chairman Mao died in 1976, powerful
CCP operatives worked to eliminate Jiang
Quing, Mao’s widow, and three other party
officials from the party. This Gang of Four was
accused of undermining the strength of the
party through adherence to Mao’s traditional
doctrines. The Chinese version of communism
placed enormous emphasis on conformity and
uniform enthusiasm for all CCP policies. With
the conviction of the Gang of Four in 1981 , the
CCP sent a message to its members that it
would not tolerate dissension within its ranks.
Also in 1981, the CCP Central Committee
declared Mao’s Cultural Revolution a mistake.
Hu Yaobang was named chairman of the CCP,
and Deng Xiaoping was named head of the
military. These changes in leadership marked
the beginning of CCP reformation. The idoli-
zation of Mao was scrapped, as was the ideal of
continuous class struggle. The CCP began to
incorporate into Chine se society technological
advances and Western production man agement
techniques. Signs of Western culture, such as
blue jeans and rock and roll music, began to
appear in China’s cities.
In 1987, Hu Yaobang was removed as CCP
chairman and replaced by Zhao Ziyang. Zhao’s
political philosophy was at odds with the
increasing acceptance of Western culture and

concepts of capitalism, and China’s urban areas
began to simmer with discon tent. By May 1989,
students and other reformists in China had
organized and were regularly staging protests
against Zha o’s leadership. After massive demon-
strations in Tiananmen Square in Beijing, the
CCP military crushed the uprisings, executed
dozens of radicals, and imprisoned thousands
more.
Thus, the CCP maintained control of
China’s government. At the same time, it made
attempts to participate in world politics and
business.
The Demise of Communist States
In the late 1980s and early 1990s, several
communist states transformed their govern-
ments to free-market economies. In 1985
Mikhail Gorbachev was named leader of the
Soviet Union, and he immediately embarked on
a program to liberalize and democratize the
Soviet Union and its Communist party. By
1990, the campaign had won enough converts
to unsettle the power of communism in the
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
42 COMMUNISM
Soviet Union. In August 1991 opponents of
Gorbachev attempted to oust him from power
by force, but many in the Soviet military
supported Gorbachev, and the coup failed.
The Soviet Union was formally dissolved in

December 1991. The republics previously con-
trolled by the All-Union Communist party held
democratic elections and moved toward partic-
ipation in the world business market. Bulgaria,
Czechoslovakia, Hungary, East Germany, and
Poland also established their independence.
Romania had conducted its own revolution by
trying, convicting, and executing its communist
dictator, Nicolae Ceausescu, at the end of 1989.
Communist control of governments may be
dwindling, but communist parties still exist all
over the world. China and Cuba have commu-
nist governments, and Spain and Italy have
powerful Communist parties. In the United
States, though, Communism has had a difficult
time finding widespread support. The justice
system in the United States has historically
singled out Commun ists for especially harsh
treatment. For example,
JOSEPH MCCARTHY, a U.S.
senator from Wisconsin, led an anti-Commu-
nist campaign from 1950 to 1954 that disrupted
many lives in the United States.
Communism in the United States
Anti-Communist hysteria in the United States
did not begin with Senator McCarthy’s cam-
paign in 1950. In Whitney v. California, 274 U.S.
357, 47 S. Ct. 641, 71 L. Ed. 1095 (1927),
Charlotte Whitney was found guilty of violating
the Criminal Syndicalism Act of California for

organizing the Communist Labor Party of
California. Criminal syndicalism was defined
to include any action even remotely related to
the teaching of violence or force as a means to
effect political chan ge.
Whitney argued against her conviction on
several grounds: California’s Criminal Syndical-
ism Act violated her due process rights because
it was unclear; the act violated the
EQUAL
PROTECTION
Clause of the FOURTEENTH AMENDMENT
because it did not penalize those who advocated
force to maintain the current system of
government; and the act violated Whitney’s
FIRST AMENDMENT rights to free speech, assembly,
and association.
The Court rejected every argument pre-
sented by Whitney. Justices LOUIS D. BRANDEIS and
Oliver Wendell Holmes Jr., concurred in the
result. They disagreed with the majority that a
conviction for mere association with a political
party that advocated future revolt was not
violative of the First Amen dment. However,
Whitney had failed to challenge the determina-
tion that there was a
CLEAR AND PRESENT DANGER of
serious evil, and, according to Brandeis and
Holmes, this omission was fatal to her defense.
Forty-two years later, the decision in Whitney’s

case was expressly overruled in Brandenburg v.
Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d
430 (1969).
The political and social protests of the 1960s
led to an increased tolerance of unconventional
political parties in the United States. However,
this tolerance did not reach every state in the
Union. In August 1972, the Indiana State
Election Board denied the Communist party
of Indiana a place on the 1972 general-election
ballot. On the advice of the attorney general of
Indiana, the board denied the party this right
because its members had refused to submit to a
LOYALTY OATH required by section 29-3812 of the
Indiana Code. The oath consisted of a promise
that the party’s candidates did not “advocate the
overthrow of local, state or National Govern-
ment by force or violence” (Communist Party v.
Whitcomb, 414 U.S. 441, 94 S. Ct. 656, 38 L. Ed.
2d 635 [1974]).
The Supreme Court, following its earlier
Brandenburg decision, held that the loyalty oath
violated the First and Fourteenth Amendments.
In Brandenburg, the Court had held that a
statute that fails to differentiate between teach-
ing force in the abstract and preparing a group
for imminent violent action runs contrary to the
constitutional rights of free speech and freedom
of association. Although the Communist party
missed the deadline for entering its candidates

in the 1972 general election, it succeeded in
clearing the way for its participation in future
elections.
In the twentieth century communism
gained a hold among the world’s enduring
political ideologies and its popularity continues
to ebb and flow with the shifting distribution of
wealth and power within and between nations.
FURTHER READINGS
Bentley, Eric, ed. 2002. Thirty Years of Treason: Excerpts from
Hearings before the House Committee on Un-American
Activities, 1938–1968. New York: Nation.
Berlin, Isaiah. 1996. Karl Marx: His Life and Environment.
New York: Oxford Univ. Press.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COMMUNISM 43
Gentry, Curt. 2001. J. Edgar Hoover: The Man and the
Secrets. New York: Norton.
McLellan, David. 2007. Marxism after Marx. 4th ed. New
York: Palgrave Macmillan.
Powers, Richard G. 1987. Secrecy and Power: The Life of
J. Edgar Hoover. New York: Free Press.
Pozner, Vladimir. 1991. Parting with Illusions: The Extraor-
dinary Life and Controversial Views of the Soviet Union’s
Leading Commentator. New York: HarperCollins.
Rosenn, Max. 1995. “Presumed Guilty.” Univ. of Pittsburgh
Law Review (spring).
Solzhenitsyn, Alexander. 2007. The Gulag Archipelago: An
Experiment in Literary Investigation. New York: Har-
perCollins.

———. 2005. One Day in the Life of Ivan Denisovich. H.T.
Willets, trans. New York: Farrar, Straus and Giroux.
CROSS REFE RENCES
Cuban Missile Crisis; Dennis v. United States;First
Amendment; Fourteenth Amendment; Freedom of Associ-
ation and Assembly; Freedom of Speech; Marx, Karl
Heinrich; McCarran Internal Security Act; Smith Act;
Socialism; Socialist Party of the United States of America;
Vietnam War.
COMMUNIST PARTY CASES
The COMMUNIST PARTY CASES were a series of cases
during the 1950s in w hich the federal govern-
ment prosecuted Communist Party members
for conspiring to and organizing the party to
advocate the overthrow of the U.S government
by force and violence.
COMMUNISM became a central concern in U.S.
law following
WORLD WAR II, which ended with
the Soviet Union occupying much of Central
and Eastern Europe, after having liberated those
areas from Nazi occupation. An ally of the
United States for most of the war, Soviet
President
JOSEPH STALIN promised to hold
democratic elections in the European countries
he occupied. However, the gover nments in
most of those countries were eventually con-
verted into Soviet satellite regimes. Meanwhile,
Soviet propaganda professed the goal of spread-

ing communist revolution around the world,
and Russian leaders remained publicly commit-
ted to this doctrine.
American leaders were concern ed that talk
of a global communist revolution was more
than idle propaganda. In addition to the Iron
Curtain of Soviet–style communism that had
descended over much of Europe, China,
another U.S. ally during World War II, was
overtaken by communist revolution in 1949.
That same year the Soviet Union announced
that it had successfully detonated its first atomic
bomb, ending a short-lived, U.S. nuclear
MONOPOLY. Shortly after this revelation, British
scientist Klaus Fuchs and Americans Julius and
Ethel Rosenberg were implicated in an
ESPIONAGE
ring that was allegedly responsible for accelerat-
ing the Russian
NUCLEAR WEAPONS program. In
1950 communist North Korea, aided by Chi-
nese troops and Russian advisors, invaded
South Korea, starting what would be a three
year conflict.
Communist hysteria in the United States
was ratcheted up another notch on February 9,
1950, when Senator
JOSEPH MCCARTHY, a Republi-
can senator from Wisconsin, ushered in the era
of McCarthyism by delivering his famous speech

at Wheeling, West Virginia, where he accused
the U.S.
STATE DEPARTMENT of harboring com-
munists. The 1950s communist
RED SCARE in the
United States was marked by a series of free-
wheeling investigations conducted by several
congressional committees, the most notorious
of which was the House Committee on Un-
American Activities (HUAC), which summoned
before it thousands of Americans who were
asked questions delving into personal beliefs,
political affiliations, and loyalties.
The first Communist Party Case, Dennis v.
United States, 341 U.S. 494, 71 S. Ct. 857, 95
L. Ed. 1137 (1951), was decided at the height of
McCarthyism. Eugene Dennis was on e of a
number of persons convicted in federal district
court for violation of the
SMITH ACT, which
proscribed teaching and advocating the violent
and forcible overthrow of the U.S. government.
18 U.S.C.A. 2385. He and the others were
alleged to have engaged in a conspiracy to form
the Party of the United States in order to teach
and advocate the overthrow of the United States
government by force and violence. Such
conduct was in direct contravention with the
provisions of the Smith Act. Dennis unsuccess-
fully appealed his conviction and was granted

CERTIORARI by the Supreme Court.
In an opinion writ ten by Chief Justice
FREDERICK VINSON, the Court focuse d its review
on two issues: whether the particular provisions
of the Smith Act violated the
FIRST AMENDMENT
and the BILL OF RIGHTS and whether the sections
in question were unconstitutional because they
were indefinite in describing the nature of the
proscribed conduct. The Court relied upon
the determination of the Court of Appeals that
the objective of the Party of the United States
was to bring about the overthrow of its
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
44 COMMUNIST PARTY CASES
government by force and violence. From this
perspective, it reasoned that Congress was
empowered to enact the Smith Act, which was
designed to safeguard the federal government
against
TERRORISM and violent revolution. Peace-
able and lawful change was not proscribed,
however. The power of Congress to so legislate
was not in question, but the means it used to do
so created constitut ional problems.
The defendants argued that the statute
inhibited a free and intelligent discussion of
Marxism-Leninism, in violation of the defen-
dants’ rights to free speech and press. The Court
countered that the Smith Act prohibits advocacy,

not intellectual discussion, which is admittedly
protected by the First Amendment. It continued,
however, that the rights given by the First
Amendment are not absolute and unqualified,
but must occasionally yield to other concerns
and values in society.
The Court decided that the clear-and-
present-danger test, first formulated by the
Supreme Court in 1919 in
SCHENCK V. UNITED
STATES
, 249 U.S . 47, 39 S. Ct. 247, 63 L. Ed. 470,
applied to the case and set out to explain its
applicability. The forcible and violent overthrow
of the government constituted a substantial
enough interest to permit the government to
limit speech that sought to cause it. The Court
then reasoned that “If [the] Government is
aware that a group aiming at its overthrow is
attempting to indoctrinate its members and to
commit them to a course whereby they will
strike when the leaders feel the circumstances
permit, action by the Government is required.”
The likelihood of success or success itself is not
necessary, provided the words and proposed
actions posed a
CLEAR AND PRESENT DANGER to the
government. The Court based its rationale upon
the majority opinion in
GITLOW V. NEW YORK, 268

U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925),
“In each case [courts] must ask whether the
gravity of the ‘evil,’ discounted by its improba-
bility, justifies such invasion of free speech as is
necessary to avoid the danger.”
Concerning the issue of indefiniteness, the
Court concluded that since the defendants were
found by the jury to have intended the forcible
overthrow of the government as soon as the
circumstances permitted, there was no need to
reverse their convictions because of the possi-
bility that others might, in the future, be
unaware of its proscriptions. When possible
“borderline” cases arise, the Court would at that
time strictly scrutinize the convictions.
The next major Communist Party case was
Yates v. United States, 354 U.S. 298, 77 S. Ct.
1064, 1 L. Ed. 2d 1356 (1957), in which the
Supreme Court reviewed the appeal of 14
Communist Party leaders who also had been
convicted under the Smith Act. However, the
Court in Yates reversed the convictions of all 14
defendants, distancing itself from Dennis on two
grounds.
The Yates defendants were charged with
conspiring to organize the Communist Party to
teach members the duty of overthrowing the
U.S government. The prosecution offered proof
that the conspiracy had started in 1940, the year
the Smith Act was enacted, and continued

through 1951. The defendants had countered
with evidence that the Communist Party had
disbanded after 1940 and was not reformed
until 1945. Sinc e the government offered no
proof that the Yates defendants had helped
reform the party in 1945, the defendants argued
that prosecution had failed to prove the
defendants were guilt y of organizing the party.
The Court found that the word organize was
ambiguous and agreed with the defendants that
under the Smith Act the word organize meant
only the creation of a new organization and not
the continuing participation in a party t hat
disbands and later reforms.
The criminal
conviction of Eugene
Dennis, under the
Smith Act, was upheld
by the Supreme Court
in 1951.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
COMMUNIST PARTY CASES 45
Next the Court examined the portion of
the
INDICTMENT that charged the defendants
with conspiring to advocate the duty and
necessity of overthrowing the U.S. govern ment
by force and violence. The indictment was

defective, the Court found, because it failed to
distinguish between advocacy of forcible
overthrow a s an abstract doctrine and
advocacy of immediate action to that end.
The First Amendment protects the former type
of speech, the Court emphasized, but not the
latter. The government has the right to
prohibit speech that advocates its forcible
overthrow by a subversive political party that
House Un-American Activities
Committee
B
etween 1938 and 1969, the House
Un-American Activities Commit-
tee (HUAC) hunted political radicals. In
hundreds of public hearings, this con-
gressional panel set out to expose and
punish citizens whom it deemed guilty of
holding “un-American” views—fascism
and
COMMUNISM. From government to
labor, academia, and Hollywood, the
committee aggressively pursued so-called
subversives. It used Congress’s
SUBPOENA
power to force citizens to appear before
it, holding them in contempt if they did
not testify. HUAC’s tactics of scandal,
innuendo, and the threat of imprison-
ment disrupted lives and ruined careers.

After years of mounting criticism, Con-
gress renamed HUAC in 1969 and finally
abolished it in 1975.
In the late 1930s, HUAC arose in a
period of fear and suspicion. The United
States was still devastated by the Great
Depression, and fascism was on the rise
in Europe. Washington, D.C., feared
spies. In early May 1938, Representative
Martin Dies (R-Tex.) called for a probe
of fascism, communism, and other
so-called un-American (meaning anti-
patriotic) beliefs. The idea was popular
with other lawmakers. Two weeks later,
HUAC was established as a temporary
committee, with Dies at its head.
Because Chairman Dies was in
charge, the press referred to HUAC a s
the Dies Committee. The chairman had
ambitious goals. At first, he set out to stop
German and Italian propaganda. Early
investigations focused on two pro-Nazi
groups, the German-American Bund and
the Silver Shirt Legion. But Dies had a
partisan agenda as well. An outspoken
critic of Roosevelt, he wanted to discredit
the president’s
NEW DEAL programs. Con-
tending that the Federal Writers’ Project
(a program to compile oral histories and

travel guides) and Federal Theatre Project
(employing out-of-work actors to help
produce plays) were rife with Commu-
nists, HUAC urged the firing of 3,800
federal employees. In this atmosphere of
conflict between the committee and the
White House, the
JUSTICE DEPARTMENT
found the numbers grossly exaggerated;
its own probe concluded that only 36
employees had been validly accused. The
committee’s first great smear ended with
dismal results.
HUAC’s limited success in its early
years was largely due to its chairman’s
political mistakes. Besides alienating
Roosevelt and the Justice Department,
Dies made an even more powerful enemy
in J. Edgar Hoover, director of the
FEDERAL BUREAU OF INVESTIGATION (FBI).
After Dies publicly criticized the director,
Attorney General
ROBERT H. JACKSON went
on the attack, accusing HUAC of inter-
fering with the FBI’ s proper role. Hoover
himself saw to it that the turf battle was
short-lived. In 1941 Dies was quietly
informed that the FBI had evidence of his
accepting a bribe. Although no charges
were brought and Dies retained the title

of chairman until 1944, he conspicuously
avoided HUAC’s hearings from that
point on.
HUAC grew in both power and
tenacity after
WORLD WAR II,forseveral
reasons. A deterioration in U.S Soviet
relations started the
COLD WAR,a
decades-long battle of words—and, as
in Korea and Vietnam, of bullets—in
which Communism became identified
as the United States’ single greatest
enemy. Both bo dies of Congres s, the
WhiteHouse,theFBI,andnumerous
conservative citizens’ groups such as the
John Birc h Society rallied to the anti-
Communist cause. Moreover, HUAC
had new leadership. With Dies gone,
Hoover was more than willing to assist
with the committee’s inv estigations,
which was fortunate, because no con-
gressional committee had the resources
available to the FBI. When HUAC
chairman J. Parnell Thomas announced
in 1947 that the committee would root
out Communists in Hollywood, he had
nothing but hearsay to go on. No
Hollywood investigation w ould have
taken place if Hoover, responding to

Thomas’s
PLEA, had not provided HUAC
with lists of suspects and names of
cooperative witnesses.
Thus began a pattern of FBI and
HUAC cooperation that lasted for three
decades. Hoover’s testimony before
HUAC in March 1947 illuminated their
common interest in driving the enemy
into the open:
I feel that once public opinion is
thoroughly aroused as it is today,
the fight against Communism is
well on its way. Victory will be
assured once Communists are
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
46 COMMUNIST PARTY CASES
is sufficient size and cohesiveness, is sufficiently
oriented towar ds action, and other circum stances
are such as reasonably to justify apprehension
that action will occur. The government had
failed to prove that the Communist Party U.S.
A. presented this type of threat, the Supreme
Court concluded.
Several factors account for the Supreme
Court’s retreat from the Dennis opinion in
Yates. Decided in 1957, Yates came at a time
when both international and domestic tensions
had subsided. The
KOREAN WAR ended in 1953,

the Senate had censured Joe McCarthy in 1954,
President Eisenhower attended a cordial Geneva
identified and exposed, because
the public will take the first step
of quarantining them so they
can do no harm…. This Com-
mittee renders a distinct service
when it publicly reveals the
diabolic machinations of sinister
figures engaged in un-American
activities.
The FBI director’s prediction was
right: Quarantining of a sort did indeed
follow.
The Hollywood probe marked a new
height for HUAC. The committee inves-
tigated the film industry three times, in
1947, 1951–52, and 1953–55. The first
hearing produced the so-called Holly-
wood Ten, a group of screenwriters and
professionals who refused to answer
questions about whether or not they
were Communists. Despite invoking
their
FIRST AMENDMENT right to FREEDOM
OF SPEECH
, they were subsequently
charged with contempt of Congress,
tried, convicted, and jailed for between
six months and one year. In later HUAC

hearings, other film industry profes-
sionals invoked the Fifth Amendment—
the constitutional protection against self-
incrimination—and they too suffered.
HUAC operated on the dubious premise
that no innocent person would avoid
answering its questions, and members of
Congress frequently taunted witnesses
who attempted to “hide,” as they said,
behind the
FIFTH AMENDMENT. Not every-
one subpoenaed was a Communist, but
the committee usually wanted each
person to name others who were, who
associated with, or who sympathized
with Communists. Intellectual sympathy
for leftists was considered evil in itself;
such “dupes,”“commie symps,” and
“fellow travelers” were also condemned
by HUAC.
These investigations had a tremen-
dous effect. Hollywood executives, fear-
ing the loss of profits, created a
BLACKLIST
containing the names of hundreds of
actors, directors, and screenwriters who
were shut out of employment, thus
ending their careers. In short time,
television and radio did the same. For
subpoenaed professionals, an order to

appear before HUAC presented a no-win
situation. If they named names, they
betrayed themselves and others; if they
did not cooperate, they risked their
future. Some cooperated extensively: the
writer Martin Berkeley coughed up 155
names. Some did so in order to keep
working, but lived to regret it: the actor
Sterling Hayden later described himself
as a worm in his autobiography Wander-
er. Others, such as the playwright Lillian
Hellman, remained true to their con-
science and refused to cooperate. The
HUAC-inspired blacklist caused a mea-
surable disruption to employment as well
as more than a dozen suicides.
HUAC’s postwar efforts also trans-
formed U.S. political life. In 1948, the
committee launched a highly publicized
investigation of
ALGER HISS, a former high-
ranking government official, on charges
of spying for the Soviet Union. Hiss’s
subsequent conviction on
PERJURY helped
inspire the belief that other Communist
spies must exist in federal government,
leading to lavish, costly, and ultimately
futile probes of the
STATE DEPARTMENT by

HUAC and Senator
JOSEPH R. MCCARTHY.
HUAC had laid the groundwork for the
senator’s own witch-hunt, a reign of
unfounded accusation that came to be
known as McCarthyism. By 1950
McCarthyism so influenced U.S. political
life that HUAC sponsored the most
sweeping anti-Communist law in history,
the McCarren Act (50 U.S.C.A. § 781 et
seq.), which sought to clamp down on
the Communist party but stopped short
of making membership illegal. The U.S.
Supreme Court ultimately stripped it of
any meaningful force.
HUAC came under fire in the late
1950s and early 1960s. After turning its
attention on labor leaders, the committee
at last provoked the U.S. Supreme Court:
the Court’s 1957 decision in Watkins v.
United States, 354 U.S. 178, 77 S. Ct.
1173, 1 L. Ed. 2d 1273, overturned the
contempt conviction of a man who
refused to answer all of HUAC’ s ques-
tions, and, importantly, set broad limits
on the power of congressional inquiry.
Yet HUAC pressed on. In 1959 an effort
to expose Communists in California
schools resulted in teachers being fired
and prompted some of the first public

criticisms of the committee. By the late
1960s, as outrage over the
VIETNAM WAR
made public DISSENT not only feasible but
widely popular, many lawmakers began
to see HUAC as an anachronism. In 1969
the House renamed it the Internal
Security Committee. The body continued
on under this name until 1975, when it
was abolished and the House Judiciary
Committee took over its functions (with
far less enthusiasm than its progenitors).
HUAC’s legacy to U.S. law was a
long, relentless campaign against personal
liberty. Its members cared little for the
constitutional freedoms of speech or
association, let alone constitutional safe-
guards against
SELF-INCRIMINATION.Much
of its work would not have been possible
without the steady assistance of the FBI,
whose all-powerful director Hoover
(1895–1972) died shortly after the com-
mittee’s heyday had ended. HUAC is
remembered in the early twenty-first
century, along with Hoover and
McCarthyism, as characterizing the
worst abuses of federal power during
the cold war.
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COMMUNIST PARTY CASES 47