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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COMMUNIST PARTY CASES 47 . 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. 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. 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