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Northwestern University School of Law professor Martin Redish looks through a First Amendment lens to sort through all the controversy, commentary and historical revisions surrounding the government's prosecutions and blacklisting of communists in the 1940s and 1950s.

The surprising conclusions in his new book "The Logic of Persecution: Free Speech and the McCarthy Era" (Stanford University Press, August 10, 2005) are sure to reignite a debate that for some was put to rest following the recent revelations of the American Communist Party's indisputable links to the Soviet Union.

The previously unrevealed Comintern and Venona documents made public in the 1990s turned upside down the widespread belief that Sen. Joe McCarthy and his colleagues unjustifiably picked on liberal innocents during the notorious House Committee on Un-American Activities hunt for communists, says Redish, the Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern.

"The documents made startling and significant strides in setting the record straight, but they didn't put the debate to bed," says Redish, a nationally renowned expert on freedom of expression. "They certainly don't free the government from its constitutional obligations and, because of that, from condemnation for its behavior during the McCarthy era."

The government trampled on First Amendment rights in its prosecution of McCarthy-era communists, Redish concludes. "The punishments resulting from the Smith Act trials had to do with expression—not espionage—amounting to little more than thinly veiled viewpoint-based persecution."

But the blacklists used to shun Hollywood entertainers and others suspected of being communists—sometimes devastating reputations and careers – are an entirely different story.

Redish argues that for the most part the blacklists were constitutionally protected, because private anti-communist organizations and individuals—not the government—made the choices both to shun those with communist affiliations and to urge others to do the same.

"While it is true most forms of governmental shunning would seriously threaten First Amendment rights by punishing individuals for beliefs, the exact opposite is true of private shunning," he says.

Reshaping the modern historical debate about the threat posed by the American Communist Party , Redish's book illustrates that the constitutional realities of free expression during the McCarthy era are far more complex than either the standard liberal or conservative positions on the issues might suggest.

Redish concedes that the left wing entertainment community of the period appears not to have been involved in any significant unlawful conduct and that the blacklists that targeted Hollywood and others included names of people who never had any affiliation with the American Communist Party.

But for the most part, the blacklists were accurate in identifying those with communist beliefs or affiliations, he says, and the private anti-communist organizations and individuals who did the shunning of them were exercising their First Amendment right of non-association.

The First Amendment's right of non-association allows those who seek to shun American communists—or Nazis or you-name-the group—to do so for no other reason than repugnance of ideological beliefs.

To reach his conclusions, Redish drew extensively from American historians' insights about the Comintern and Venona documents.

The Comintern was the organization in the Soviet Union that controlled communist parties throughout the world, and when Soviet President Boris Yeltsin decided to open the documents to a select group of American historians, they revealed that the Communist Party in the United States was under the control of the Soviet Union , which decided disputes in the American party.

The so-called Venona documents are cablegrams that were sent by Soviet KGB agents to Moscow . Designed to be unbreakable, the codes were first broken in 1946, but, because of political reasons, only declassified in the 1990s.

The Venona documents showed that since 1942 the nation had been targeted by an intense and widespread Soviet espionage program that had utilized numerous professional Soviet agents and hundreds of Americans, often taken from the ranks of Communist Party members who were the most fiercely loyal to the party and its goals.

"The release of the Venona documents sent shockwaves through the American historical community," says Redish. "They showed that the elite core of the American Communist Party was up to its neck in both conducting Soviet espionage and facilitating the conduct of Soviet espionage by Russian agents."

But just as the historians who downplay the Venona documents miss the point, so too do the revisionists who smugly conclude that the government's actions were vindicated. Ironically few American communists were prosecuted for espionage. "No scholar in his right mind would say that espionage is protected by the First Amendment," Redish says.

Rather most of the prosecutions were for expression.

"The Venona documents' revelations of extensive espionage or espionage facilitation by American communists in no way justified open season on American communists," he says.

Much of the government's legal strategy during the period was the prosecution of the leaders of the Communist Party for conspiracy to violate the Smith Act's criminal prohibitions on organizing the teaching of advocacy of the government's violent overthrow.

"In light of the total absence of evidence presented by the government to demonstrate even the remotest beginnings of an active American communist plan to attempt to overthrow the government, the subversion for which communist leaders were prosecuted amounted to very little more than punishment for the holding of unpopular ideas," he says. "A truly shameful moment in American history."

Commentators treat the concepts of espionage and subversion as if the two were interchangeable forms of behavior, Redish explains. "However, from the perspective of free speech theory, as well as political reality, there are enormous differences between the two types of activity."

Espionage consists of the communication or transfer of classified or otherwise secret information or documents to foreign powers. In contrast, advocacy of unlawful conduct does not, by its nature, involve such transfers. Instead, its focus is an attempt to persuade freethinking individuals to adopt a particular course of behavior.

"Most forms of subversion through expression go to the very heart of what the First Amendment right of free speech is all about," Redish says.

A commitment to a democratic system necessarily means total rejection of government's power to censor expression on the basis of normative disagreement with the views expressed, no matter how detestable, he says. The modern day Supreme Court has invariably recognized that viewpoint-based restrictions of expression are unconstitutional.

Redish points out that a number of Americans had strong reasons for disdaining communists and all they stood for during the McCarthy era. "The fervor of the anti-communists' viewpoints often matched or exceeded that of the communists."

But that is beside the point, he argues.

"The First Amendment, if properly construed, insulates American communists from governmental punishment based solely on ideology and unfounded fear of criminal behavior. At the same time, when it comes to the blacklists, that same constitutional provision guarantees private individuals the option to disassociate from those whose views they deem offensive."

(The ISBN number for "The Logic of Persecution: Free Speech and the McCarthy Era" (Stanford University Press, August 10, 2005) is 0-8047-4804-7.

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