Clear and Present Danger

For thirty years this country has borne, among other afflictions, the performance of the House UnAmerican Activities Committee. Goodman’s is the fourth book about that performance. These books provide more than ample evidence for the conclusion that the best thing to do with HUAC is to abolish it, though Goodman’s provides less such evidence than did the earlier ones.

A moral is to be drawn from the very circumstance of HUAC’s creation. HUAC began in 1938 after five years of persistent effort by Representative Samuel Dickstein of New York. Dickstein, unmindful of Justice Holmes’s admonition that First Amendment guarantees mean “freedom for the thought we hate,” made it abundantly clear that the “un-American activities” which he wanted investigated were the anti-Semitic utterances of German American Bundists. With the support of such unlikely bedfellows as Martin Dies of Texas, the anti-Semitic John Rankin of Mississippi, the Federal Council of Churches, the Non-Sectarian Anti-Nazi League, and the American League for Peace and Democracy, Dickstein got his committee—but it was not his. “Many members of Congress felt,” Representative Shannon of Missouri explained, “that an investigation of this kind should not be headed by a foreign-born citizen.” The final decision, in fact, was even further to maintain the native purity of the committee—the Chairmanship went to Dies, and Dickstein was not even named to committee membership.

The resolution under which HUAC has conducted its marathon investigation, as adopted in 1938 and since unchanged, authorizes it to inquire into “subversive and un-American propaganda.” It is, of course, impossible to disseminate “propaganda” without exercising the freedom of speech, press, and association which the First Amendment forbids Congress to abridge.

During its first six years HUAC operated as a special committee, and under Chairman Dies it was essentially a one-man show. His performance made it clear that he regarded as the main un-Americans the members and supporters of Roosevelt’s New Deal Administration. After a perfunctory inquiry into the Bund, he directed his attention to attempting to establish that Communists had infested the CIO, the WPA’s federal theater project, the Labor Department, the Justice Department, the National Labor Relations Board, the National Youth Administration, the Tennessee Valley Authority, and the Farmer-Labor Party in Minnesota. Moreover, during this period Dies developed the “investigating” technique which the Committee still favors: the use of volunteer “friendly” witnesses who are allowed, without fear of cross-examination or need for rational justification, to characterize others as “Communists,” “Communist dupes,” and “fellow travelers,” and organizations as “Communist fronts.”

The prototype of the friendly witness was J. B. Matthews, a former Methodist missionary and former chairman of the American League Against War and Fascism, who saw the light in 1935 when, as Vice-President of Consumers’ Research, he concluded that a strike by its employees was Communist-led. He appeared before the Committee in 1938 to testify that a number of Hollywood personalities, including Shirley Temple, were Communist dupes. Dies was so impressed that he hired Matthews as his chief investigator. Matthews held this post for the next five years during which time he wrote committee reports revealing that all major consumer organizations except Consumers’ Research were under Communist influence and fed the Committee’s insatiable appetite for names of un-Americans from the files of letterheads and radical publications which he had compiled during the days before his enlightenment.

During World War II HUAC’s fortunes waned, particularly after Hitler’s invasion of the USSR put Russia on our side. Ninety-four members of the House, a record, voted against continuing HUAC in 1943. Dies persevered long enough to see the Supreme Court strike down, as an unconstitutional bill of attainder, the one piece of legislation for which he or his committee deserved any credit—a rider to an appropriation bill forbidding payment of the salaries of three federal employees whom Dies deemed un-American. When Dies decided in 1944 not to seek re-election, HUAC’s days appeared to be numbered.

But this was to reckon without the cunning of John Rankin of Mississippi. On the opening day of the new Congress in 1949, he moved to make HUAC a standing committee of the House. Since his motion was made before House committees had been established for the 79th Congress, it could not be referred to a committee where it might wither and die, but had to be voted on. The initial vote was against the motion, 146 to 134. But when Rankin demanded a roll call so that individual votes could be recorded, there was a pronounced switch and the motion carried, 207 to 186. No Congressman who voted for HUAC’s new lease on life was moved to explain his vote as candidly as Representative Cochran of Missouri had done when he voted for the Committee’s creation in 1938. “I do not want to be accused,” Cochran said, “of refusing to vote for legislation to investigate un-American activities.”

Since its establishment as a standing committee, HUAC has served under several chairmen: Edward J. Hart of New Jersey, John S. Wood of Georgia, J. Parnell Thomas of New Jersey, Harold H. Velde of Illinois, Francis E. Walter of Pennsylvania, and Edwin E. Willis of Louisiana. It has investigated Hollywood, espionage, Hollywood again, Los Angeles lawyers, labor unions, Hollywood again, entertainers in New York City, universities, clergymen, labor unions again, New York City entertainers again, a “Communist passport conspiracy,” another conspiracy which Chairman Walter detected in efforts to change the national origins quotas in the McCarran-Walter Immigration Act of 1952, New York City entertainers again, lawyers and entertainers in California again (with teachers thrown in for good measure), and—in more recent years—demonstrators for peace and for civil rights. Always it has found what it was looking for—Communist influence.

Nearly always too, HUAC’s evidence was suspect both for what its procedures did not reveal and for some matters which were revealed elsewhere. The manner in which the names of one organization and one individual entered the Committee’s hearing record in 1956 is typical. The Committee counsel, Richard Arens, was questioning a witness, Anita Schneider, who had previously testified that she was a member of the Communist Party as an undercover agent for the FBI for almost five years. She had also “identified,” by reading the organization’s name from the letterhead, two documents published by a Citizens Committee to Preserve American Freedoms in Los Angeles. Her testimony continued:

Mrs. Schneider: I had some contact with that committee.

Mr. Arens: Was it Communist-controlled?

Mrs. Schneider: Yes.

Mr. Arens: Who was the ring-leader in that organization?

Mrs. Schneider: I didn’t work in that organization, and I don’t know who the ringleader was. My contact on that occasion was with Frank Wilkinson, I believe.

Mr. Arens: Did you know him as a Communist?

Mrs. Schneider: Yes.

Obviously, this testimony cries out for cross-examination. Mrs. Schneider’s knowledge about the Los Angeles Citizens Committee was apparently fugitive at best. And what did she mean when she affirmed that she knew Wilkinson “as a Communist”? She might have meant any number of things—that she had collected Communist Party dues from him, that she had attended Communist Party meetings with him, that she had seen him at meetings which she assumed to be organized by, or attended by, Communists, that she knew that the Citizens Committee to Preserve American Freedoms was urging the abolition of HUAC and therefore assumed—as does HUAC—that anyone associated with such an enterprise must be a Communist. Or she may merely have been trying to accommodate Arens by giving the answers he clearly wanted to his crude leading questions. Cross-examination might have bolstered her testimony or it might have destroyed it.

But HUAC and its counsel are never curious about the basis for a friendly witness’s conclusions or about the witness’s credibility. It has been left to others to reveal, outside the hearing room, that one friendly witness who supplied HUAC with some 300 names of un-Americans had a long history of mental disturbance and alcoholism, and that another, praised by HUAC’s chairman as “one of the outstanding witnesses to appear before this Committee,” had incurred his twentieth conviction for public drunkenness less than a month before testifying and suffered his twenty-first less than a month thereafter.

HUAC has always been content with the sort of hit-and-run accusations made by Mrs. Schneider. It never seriously interrogates its friendly witnesses about the factual basis for their accusations, and it never gives those accused a fair opportunity to attempt to refute the accusations. In fact, in its early years HUAC showed little interest in calling an accused unless he was willing to corroborate the accusation. But the growing body of Federal legislation defining political crimes gave many witnesses perfectly legitimate grounds for invoking the Fifth Amendment’s privilege against self-incrimination. Senator Joseph McCarthy, of course, capitalized on popular misunderstanding of the privilege—and stole headlines from HUAC—by coining the term “Fifth Amendment Communist.” So HUAC changed its techniques: If the accused would not confess, a claim of self-incrimination could be made to do almost as well.

This aim of the Committee was clear in the 1956 hearings when, after Mrs. Schneider had concluded her testimony, Frank Wilkinson was called. Wilkinson upset the Committee’s plans by announcing that he would refuse to answer all questions because the Committee “stands in direct violation of the First Amendment of the Constitution.” Taken aback, but not yet ready to abandon the effort, Arens and members of the Committee persisted:

Mr. Arens: You have still another [reason], haven’t you? Let’s get to that one. Do you honestly apprehend that if you told this committee truthfully what your address is you would be giving information that might be used against you in a criminal proceeding?

Mr. Wilkinson: I have the utmost respect of Congress to have [sic] the broadest possible powers to investigate, but Congress cannot investigate into areas in which it cannot legislate. And this UnAmerican Activities Committee attempts, by its mandate and by its practice, to investigate…

Mr. Doyle:…Have you any other answer to give to my direction that you answer that question?

Mr. Wilkinson: Yes, sir.

Mr. Arens: What is it?

Mr. Scherer: I don’t think we have to force from him the use of the Fifth Amendment.

Mr. Doyle: Oh, no.

Mr. Scherer: If he doesn’t want to take the Fifth Amendment, let’s proceed. Let’s go to the next question….

Mr. Doyle: Mr. Wilkinson, I am directing you to answer that question [whether he was responsible for an advertisement in opposition to HUAC by the Citizens Committee to Preserve American Freedoms].

Mr. Wilkinson: I am answering no questions, on the grounds of my initial answer.

Mr. Scherer: Does your initial answer include an invocation of the Fifth Amendment?

Mr. Wilkinson: My initial answer stands as I made it….

Mr. Scherer: I think we should ask him—I see the position he is taking. Does your original answer include the Fifth Amendment?

Mr. Wilkinson: My original answer stands as I made my original answer.

Mr. Scherer: Are you refusing to answer this question on the basis of the Fifth Amendment?

Mr. Scherer: Mr. Chairman, I ask that you direct the witness to answer my question, whether his refusal to answer your direction to answer the question is based in any way on the Fifth Amendment.

Mr. Doyle: I direct you to answer that question, Mr. Wilkinson.

Mr. Wilkinson: My original answer stands as I made my original answer….

Mr. Scherer: Are you at present a member of the Communist Party?…

Mr. Wilkinson: I am answering no questions of this committee, on the grounds of my initial answer.

Mr. Scherer: In refusing to answer the question I have just asked you…are you refusing to answer on the basis of the Fifth Amendment?

Mr. Wilkinson: I am refusing to answer any questions of this committee on the grounds I have stated.

Wilkinson left the stand without having been induced to invoke the Fifth Amendment.

More recently, HUAC has been able to put the Fifth Amendment and popular misunderstanding about it to somewhat different use. If a friendly witness cannot be found to name Mr. X as a Communist, the Committee will call an unfriendly witness. If he invokes the Fifth Amendment to questions about himself, he will then be asked if he knows Mr. X to be a Communist. If he persists in his invocation of the Fifth Amendment, HUAC thereupon concludes that both the witness and Mr. X are Communists. This technique was practiced in 1965, in hearings in Chicago in which one of HUAC’s targets was Dr. Jeremiah Stamler. No witness was produced to identify Dr. Stamler as a Communist. But three witnesses, who had relied on the Fifth Amendment in refusing to answer other questions twenty-two, twenty-four, and sixty times respectively, were then questioned about Dr. Stamler and obliged HUAC by invoking the Fifth Amendment again.

In only two cases have HUAC’s charges withstood tests in court where the accuser must prove his case and his witnesses are subjected to cross-examination. In 1948 Whittaker Chambers, testifying under HUAC’s auspices, accused Alger Hiss of having committed espionage between 1934 and 1938. In 1948 also Elizabeth Bentley, testifying before a subcommittee of the Senate Committee on Expenditures in Government Departments, accused William Remington, a government employee, of espionage during World War II. Remington was later cleared by the Loyalty Review Board after Miss Bentley declined to appear to repeat her testimony in the loyalty proceedings. HUAC then took over the Remington case and produced two witnesses to testify that Remington had been a member of the Communist Party in 1936 and 1937.

Remington’s alleged Party membership in the Thirties would not support a criminal indictment—at that time such membership was perfectly legal. Nor would the alleged ten-year-old espionage of Hiss: prosecution was barred by the statute of limitations whose purpose is to avoid the risk of erroneous judgments because of stale evidence, faulty recollections, and missing witnesses. But these technical difficulties disappeared when each man appeared before HUAC and denied the charges. Each was then indicted for perjury and each, after two trials, was finally convicted.

These are HUAC’s two great triumphs and those who believe that the end justifies the means will regard it as churlish of me to point out that in both cases HUAC exceeded its authority. Neither Hiss nor Remington was suspected, or accused of, or shown to have engaged in, the dissemination of propaganda. Propaganda is not the business of spies and spies are not the business of HUAC. Jurisdiction over espionage is committed to the House Committee on the Judiciary.

In other respects HUAC’s record before the courts has been spotty. During the past seventeen years more than 130 persons have been prosecuted for contempt of Congress in refusing to answer HUAC’s questions, but fewer than a dozen have finally been convicted. Most of the prosecutions have failed because of HUAC’s violations of its own rules, the rules of the House, or the requirements of the statute authorizing the contempt proceedings. HUAC, preoccupied with prescribing rules of proper belief, speech, and association for others, has never quite been able to recognize that it is subject to any rules or that those called before it are entitled to invoke any rules. “The rights you have are the rights given you by this Committee,” Chairman Thomas told a witness’s attorney in 1948. “We will determine what rights you have and what rights you have not got before this Committee.” Almost twenty years later he was echoed by Committee member Joe Pool, who advised the lawyer for another witness, “I will deal any way I want under the rules in this hearing.”

But the contempt proceeding has never been HUAC’s chief sanction. It relies, instead, on economic and social reprisals. As Chairman Walter once put it, in announcing a quest for subversives in industrial plants, if they are “exposed before their neighbors and fellow workers…. I have every confidence that the loyal Americans who work with them will do the rest of the job.” (These sanctions, of course, do not work well against disaffected youths who have no jobs and who have renounced their society. Failure to recognize this fact has caused HUAC some embarrassment in its current attempt to whitewash Mayor Daley’s treatment of demonstrators at the Democratic Convention in Chicago.)

Because HUAC’s own lawlessness leads to the failure of most contempt charges, it proved difficult to get the courts to rule on the basic challenge to it—that its mandate and its performance violate the First Amendment. Unfortunately, by the time they did come to rule on it a bare majority of the Supreme Court had endorsed Justice Frankfurter’s “balancing test” for interpreting the First Amendment. By that test the case was not disposed of by a demonstration that Congress had abridged First Amendment rights, although that is precisely what the First Amendment forbids.

Nor was it enough to show that the speech being abridged created no clear and present danger of substantive evils which Congress can forbid—the Holmes-Brandeis test which prevailed in earlier times. Under the Frankfurter test the interest in free speech (described as a “private” or “individual” interest) was to be “balanced” against the interest in restraining speech (described as a “public” or “governmental” interest), and if the balance should favor the latter, speech could be abridged. The manner in which such a balance was cast defied description, of course, but, with the public interest in free speech ignored, the scales were usually found to tilt in favor of restraint. That was the Court’s finding in one case in 1959 and in two more in 1961 (one of which involved the contempt conviction of Frank Wilkinson, now Executive Director of the National Committee to Abolish HUAC). With Chief Justice Warren and Justices Black, Douglas, and Brennan dissenting in all three cases, a majority concluded “that the balance between the individual and the governmental interests here at stake must be struck in favor of the latter, and that therefore the provisions of the First Amendment have not been offended.” (With three members of that majority now gone, the Court is being asked this term to reconsider the matter in two cases pending.)

Further judicial appraisal of the Committee’s work has centered on its one legislative monument since Martin Dies’s 1943 bill of attainder, the registration provisions of the Internal Security Act of 1950. (The further provisions in that Act for the incarceration of security risks in emergency detention camps when the President proclaims an “internal security emergency” are not the product of HUAC, but of certain “liberal” Senators like Hubert Humphrey who considered 1950 a propitious year to demonstrate that they were not soft on Communism. But HUAC is currently urging the use of those detention camps as the ultimate solution to violence in the ghettos.) The registration provisions originated in a bill sponsored by Committee members Mundt and Nixon in 1948. As enacted two years later, this bill set up a Subversive Activities Control Board, authorized it to designate organizations as “Communist action” and “Communist front” groups, and required such groups to register with the Attorney General and to supply him with information on their officers, membership, and finances. Members of the organizations were forbidden to use passports, to hold labor union office, or to be employed by the United States or a defense facility, while the organizations were deprived of tax exemptions and were required to label all of their mailings and radio or television broadcasts to reveal that they were disseminated by “a Communist organization.”

Most of HUAC’s later legislative efforts have been devoted to improving this law. The Communist Control Act of 1954 amended it to include “Communist infiltrated” organizations, and another 1954 amendment required proscribed organizations to disclose information about their most dangerous weapons—printing facilities. In 1962 the Internal Security Act was amended again to delete a requirement that the Secretary of Defense publish lists of defense facilities, someone having pointed out to HUAC that this requirement might give aid and comfort to the enemy.

The Internal Security Act had a tough time in the Supreme Court. The Subversive Activities Control Board after protracted hearings concluded that the Communist Party of the United States was a “Communist action” group, but this determination was set aside because it was based in part on the evidence of perjurers. In a second proceeding, the Board was able to reaffirm its determination without that evidence. The provision denying passports to members of proscribed organizations was held unconstitutional as a deprivation of liberty without due process of law. The prohibition against members’ employment in defense plants was struck down as a violation of the First Amendment. The Court’s decision that another Federal statute barring Communist Party members from labor union offices was a bill of attainder presaged a similar ruling on the similar provision of the Internal Security Act. Moreover, when the registration provisions of the Act were held to violate the Fifth Amendment’s privilege against self-incrimination the Board was left with no registrations to show for more than fifteen years of operation.

At this point, in 1967, HUAC teamed up with Senator Dirksen to enact a new Internal Security Act. Gone, under the new Act, are the registration requirements—and gone also is the pretext that such legislation was justified by the government’s need for information about threats to national security. The real purpose—maintenance of a political blacklist—is now perfectly clear. The Board is to keep a list of proscribed organizations “open to public inspection,” with copies available at cost “to any person upon request.”

One other product of HUAC’s activities has not received any attention from the courts and is probably unknown to many of those injured by it. HUAC’s files bulge with listings of thousands of individuals and groups. These listings are not merely the distillation of the hearsay and conjecture of committee hearings, but include also any adverse information that the committee’s staff has acquired from other sources—principally the Daily Worker, but including federal income tax returns. Anyone, through his Congressman, can obtain a dossier on any person or organization in HUAC’s files, neatly and officially typed on the committee’s letterhead. In 1967, HUAC reported, it made file checks, in response to requests, on 2,842 individuals and 914 organizations and issued 2,392 dossiers. In addition, twenty departments and agencies sent their own representatives to search the files in the administration of the Federal loyalty program. The Civil Service Commission made 288,000 such searches during the year and the Defense Department about 120 per week.

Most of HUAC’s sordid record emerges from Goodman’s book as he plods through a year-by-year account of its activities, but its end is inconclusive. Previous studies have been severe in their condemnation of HUAC and unanimous in their conclusion that it should be abolished. But Goodman warns us at the outset that, while he would be “dismayed at a charge of indifference,” he is acting out of no “misplaced affection for the totalitarians of the left” and did not intend “to produce a document for service in the fitful campaign for abolition.” Even with this advance notice, however, his ultimate judgment on HUAC hardly seems worth the labor of author or reader.

HUAC, Goodman concludes, is not “un-American”! What, he asks, “is un-American about the brutality of J. Parnell Thomas, the cunning of Richard Nixon, the mindless opportunism of Harold Velde, the xenophobia of Francis Walter, the stupidity of Joe Pool?” America has always had such men. But the same might be said of murderers and rapists. It is a little difficult to see in any case where this conclusion advances us. (It seems to please Richard Rovere, who has written an appreciative foreword praising Goodman for “the even-handedness of his contempt for the Stalinist Left and the yahoo Right.”) My impression is that Goodman believes that the only thing seriously wrong with HUAC is the low quality of its membership. If only it could be staffed by men of intelligence, judgment, and dedication to political freedom (men like Goodman, who are neither “totalitarian liberals” nor of the “lumpen right”) he would have little quarrel with it.

Certainly he is right about the quality of the HUAC’s members. With the occasional exception of men persuaded to accept appointment to the committee by the futile hope of improving it from within—Jerry Voorhis of California in 1939 and, currently, John Culver of Iowa—the members have been either nonentities or men of less than admirable character. (Supporters of Richard Nixon concede that he belonged in the latter category at the time of his committee membership when they try to persuade us of the new, more admirable, Nixon.)

It is doubtless true that HUAC’s procedures and techniques are largely influenced by the character of its members. But one could scarcely conclude with confidence that the operation of the committee under Goodman himself would be greatly improved. In the first place, he seems to share HUAC’s appraisals of many of those whom it mistreated, and usually he produces less evidence for his appraisals than HUAC. Dr. Harry F. Ward “was the model of a model fellow traveler.” NLRB member Edwin S. Smith was a “fellow traveler” who used his position to “nudge the American labor movement along Communist lines.” Scenarist Donald Ogden Stewart was a “pillar of fellow traveldom,” while Goodwin Watson (one target of Dies’s bill of attainder) was “merely a run-of-the-mill fellow traveler.” Actor Melvyn Douglas “had an off-screen affinity for left-wing causes,” and Robert Morse Lovett (another attainder target) “made a career of being used by the Communists.” Frank Wilkinson was “identified” as a Communist Party member, presumably by Mrs. Schneider.

When Goodman does provide evidence for his characterizations, it is obviously evidence that requires a special reading. Thus, the following statement issued by the American League Against War and Fascism after a HUAC attack is “sufficient to damn it as a front group without further evidence”:

Long after Mr. Dies’ name has been forgotten the six hundred names of the members of the…League…in Washington will stand as a testimonial to the courage of Americans who refuse to be intimidated by this twentieth century inquisition. No American is safe so long as the Dies Committee is permitted to defy the American Bill of Rights. The…League…will continue to expose the enemies of peace and democracy in the United States.

It seems fair to conclude that Goodman shares the view of Richard Rovere that, “with few exceptions, the investigators and the investigated have seemed richly to deserve each other”—a sentiment endorsed by Arthur Schlesinger, Jr. in his enthusiastic review of Goodman’s book in the Washington Post.

Indeed, Goodman seems so deeply to have absorbed HUAC’s modes of thought that he applies them also to HUAC’s critics. The Emergency Civil Liberties Union was formed in 1951 “as a kind of benevolent and protective association for Communists in trouble.” Those who opposed HUAC’s attacks on churches and clergymen included “quite a number not known for their piety.” And “liberal spokesmen found themselves arguing that Communists were pretty much like Masons and the C.P. was like the G.O.P.”

It is perhaps for this reason that Goodman, forgetful of Representative Dickstein’s lesson, never really deals with the basic objection to HUAC’s record—for the most part, and whenever it stays within its mandate, its efforts have been devoted to harassing those whose political views, expressions, and associations do not meet with HUAC’s approval. As the First Amendment recognizes, this is completely contrary to the concept of an open, democratic society. In such a society, overt acts may be investigated, legislated against, and punished, but speech, belief, and association must remain free of governmental restraint. HUAC’s mandate has it backward. HUAC is given no authority to investigate overt acts, but only to investigate propaganda—i.e. speech, belief, and association.

But perhaps it is just as well that Goodman did not undertake the First Amendment problem, in view of his handling of the Fifth. In 1954, Erwin Griswold, then Dean of the Harvard Law School and now Solicitor General of the United States, delivered a series of three speeches on the Fifth Amendment. In one of them, he made the point that the privilege against selfincrimination protects a witness against incriminating testimony—testimony which might expose him to prosecution though he is guilty of no crime—and that therefore invocation of the privilege will not support an inference of guilt. By way of illustration he suggested that a professor who joined the Communist Party in the late 1930s, limited his activities to a study group, and quit the Party in 1950, would be entitled to invoke the privilege as to his past membership since his testimony could be used in a prosecution under the Smith Act, even though it would not by itself establish his guilty of any crime and he was not in fact guilty of any crime. He also suggested that another professor who had never belonged to the Communist Party but who had belonged to a number of organizations later characterized as “Communist fronts” could for the same reason invoke the privilege when asked about past Communist Party membership. In both cases, he pointed out, any inference of guilt drawn from invocation of the privilege would be erroneous.

But Goodman believes that Griswold “had allowed his distress at the way legislative hearings were being conducted to fog his thinking.” First, he was unrealistic: “No study-group Communists were ever prosecuted; the big Communist trials involved longtime C.P. leaders and functionaries.” (Writing in 1968 Goodman apparently forgets, if he ever knew, that the Supreme Court first threw out the prosecutions of “second-string” Communists under the Smith Act in 1957.) Second, Griswold’s “no-inference principle ran squarely against common sense,” as common sense is defined by Sidney Hook. In “a devastating retort to Griswold,” Hook has shown that people of common sense could not “blink away the presumption” that the professors had “something to hide.” After all, one of them, “though guiltless of any crime, had been a member of the Communist Party.” (But Griswold’s point was that an inference that either professor was guilty of a crime would be unwarranted. Moreover, even if we accept the Goodman-Hook expansion to permit an inference of guiltless but disapproved Party membership, how is the inference-drawer to distinguish the first professor from the second? Or do they both, for their indiscretions, “deserve” to be characterized as “Fifth Amendment Communists”?)

In 1951, dissenting from a decision that a conspiracy to advocate forcible overthrow of the government by national officers of the Communist Party of the United States constituted a clear and present danger of attempted overthrow, Justice Douglas said of the defendants: “In America they are miserable merchants of unwanted ideas; their wares remain unsold. The fact that their ideas are abhorrent does not make them powerful…. Only those held by fear and panic could think otherwise.” In separating the “totalitarian liberals” from the others, Goodman has overlooked a category—the liberals held by fear and panic.