Ohio History Journal

The "Naive Liberal," the "Devious Communist" and the Johnson Case by David L. Sterling

Particularly during the decade of the 1950's, but by no means unheard today, the allegation has been made that in any cause where liberals and Communists join, either fortuitously or by design, the former are inevitably manipulated by the latter for propagandist and even more sinister pur- poses. The accusation has emanated from congressional committees, news- papers and other publications, veterans and patriotic organizations. What- ever the source, the theme of the charge has essentially been the same: naive, if well-intentioned, liberals, "tools and dupes," have been molded like putty by devious and maladroit Communists. While the historian would be wrong to generalize from limited evidence, it might yet be instructive to test the allegations that have so long been taken for granted. That is the purpose of this paper: to offer a corrective to the portrait of the naive liberal and the devious Communist by examining the cooperative and conflicting roles of the American Civil Liberties Union and the Communist-controlled International Labor Defense in the appeal of Johnson et al. v. State of Ohio, the first important case brought under the Ohio Criminal Syndicalism Act. This appeal was made in the Seventh District Court of Appeals for Belmont County, St. Clairsville, Ohio. As a reaction to the Bolshevik Revolution and the organization and activi- ties of the Industrial Workers of the World and the American Communist party, during and just after the First World War, eighteen states and two territories passed acts penalizing what was denominated as the advocacy of criminal sydicalist doctrine.1 The Ohio statute was not unique in its ter- minology or in its purposes;2 its enactment had been urged as necessary to preserve American democracy from revolutionary groups, Bolsheviks, "radi- cal aliens," and the members of the Industrial Workers of the World. On April 15, 1919, the Ohio house passed the proposal by a vote of 105-0; the senate immediately followed with a 30-0 ballot in favor; and the bill became law on May 7, 1919.3 NOTES ON PAGE 149

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THE JOHNSON CASE                                                  95

 

When Governor James Cox put his signature to the Ohio Criminal Syndi-

calism statute in the spring of 1919, he could justify his actions in a frame-

work of labor unrest and radical agitation. A month earlier in April there

had been strikes by carpenters in Columbus and by machinists in Toledo;

only a week before on May 1, 1919, a public meeting had become a brawl

between a crowd, led by Charles Ruthenberg, and the Cleveland police.

Half across the nation in Boston, New York and other cities, there had been

pitched battles between May Day paraders and law enforcement agents. The

country's newspapers had raised the specter of a "reign of terror" and, to

corroborate their apprehensions, had printed the sensational story of a plot

to assassinate thirty-six Americans, including three cabinet members, two

business tycoons, and, of all people, Supreme Court Justice Oliver Wendell

Holmes, Jr.⁴ Ohio, along with the other states, seemed hell-bent toward Red

revolution.

In this context of violence, it is perhaps surprising that for a decade after

its passage there were no convictions under the Ohio Criminal Syndicalism

statute. Throughout the nation as a whole in 1919 and 1920 there were ap-

proximately 1400 men and women, citizens and aliens, arrested under state

syndicalist, sedition, and Red Flag laws, and of this number nearly thirty

percent were convicted and imprisoned. In California alone during the

years from 1919 to 1921 there were 500 arrests and 264 convictions. But in

Ohio, while there may have been arrests, there were no reported cases.⁵

On July 12, 1929, Betty Gannett and Zolki Yoki, both members of the

Communist party, were arrested in Martins Ferry, Ohio, for distributing a

leaflet outside a steel plant and were charged with advocating criminal synd-

icalism.⁶ Three weeks later on International Red Day, August 1, 1929, Com-

munists Tom Johnson, Lillian Andrews, and Charles Guynn traveled from

Cleveland to Martins Ferry to hold an anti-war demonstration. With them

they brought a handbill, printed on both sides, denouncing among other

things capitalism, imperialist wars, the League of Nations, the United States

Congress, and the Kellog-Briand Peace Pact. The leaflet threatened "revo-

lutionary mass action"; it predicted "the overthrow of capitalism and the

establishment of a worker's and farmer's government in America." "Without

the overthrowing of capitalism," it read, "there can be no permanent peace."

And then it redundantly continued:

If we must fight them [capitalists], let us fight. Let us fight on the side

of our class, on the side of the Soviet Union. If America declares war

on the Soviet Union, the workers of America, led by the Communist

Party, will work actively for the defeat of the reactionary American gov-

ernment in this war. If the United States declares war on the Soviet

Union, the workers of the United States who will be called on to serve

in the army of this reactionary government, will desert the army and go

over to the side of the Soviet Union. If America declares war against the

Soviet Union, the workers of America, under the leadership of the

Communist Party, will turn this war into a civil war for the overthrow-

ing of American capitalism and the establishment of a working class

government in America.⁷

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96                                                OHIO HISTORY

 

The two men and their female comrade stationed themselves at different

points in the Martins Ferry public square and began to address small aud-

iences; in the crowd there were at least four policemen. Only a few minutes

had elapsed when, first, Miss Andrews and, then, Johnson and Guynn were

seized by the police and escorted from the square. Before their arrest, John-

son and Guynn had not had an opportunity to distribute the handbills; they

had said that they were going to speak no matter what action the police

took. Before her arrest, Miss Andrews had broached the subject of "im-

perialist suppression" and had scattered a few leaflets among the spectators.8

Indicted by the Belmont County grand jury, charged with unlawfully

distributing "written matter which . . . openly, wilfully and deliberately

justified the commission or attempt to commit sabotage, violence and unlaw-

ful methods of terrorism with an attempt to exemplify, spread and advocate

the propriety of the doctrine of criminal syndicalism," the Communist

triumvirate went on trial on November 20, 1929, in St. Clairsville, Ohio.

Tile prosecution claimed that Miss Andrews had thrown the handbills in

the air and exhorted the crowd to get them before the police did; the de-

fense contended that so violently had her arm been seized by the police

chief, that the handbills had been knocked from her grasp into the air and

among the audience. The prosecution charged that the defendants were

radicals and Communists and that the handbill introduced in evidence was

the "bastard's spawn of anarchy"; in his summation to the jury, the special

prosecuting attorney portrayed himself leading an attack on the Communist

party headquarters in Cleveland, cleaning out "the damnable rat hole," and

placing the American flag on its roof. The jury deliberated between three

and five minutes and brought in a verdict of guilty, and the defendants

were later sentenced to five years in prison.9

Johnson v. State of Ohio was tailored to the needs of the Communist-

dominated International Labor Defense: three young defendants, pilloried

and persecuted, denied a fair trial, imprisoned for championing the cause

of peace and the rights of labor. A Cleveland attorney who was affiliated

with the International Labor Defense, Mrs. Yetta Land, had represented

Johnson, Guynn, and Andrews at the St. Clairsville trial. Four years earlier

in 1925 the ILD had been organized with James R. Cannon as its national

secretary and with such letterhead luminaries as Clarence Darrow, Eugene

Victor Debs, and Upton Sinclair on its national committee. (Debs' name

remained on the stationery long after his death; Sinclair, whose name had

been used without permission, demanded its removal.) From its headquar-

ters in New York City, the International Labor Defense had campaigned

for the release of Nicola Sacco and Bartolomeo Vanzetti; against Tom

Mooney's vehement protests, it had propagandized on his behalf; and it had

later entered the Scottsboro case involving nine young Negroes, aged thir-

teen to twenty-one.10 By the end of 1926 it claimed 20,000 individual and

75,000 "collective" members organized into 156 branches. Although the ILD

included a number of liberal, non-Communists on its national committee

and although it embraced the anarchists Sacco and Vanzetti, the trade-

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THE JOHNSON CASE                                                97

 

unionists Mooney and Warren Billings, and the young Negroes accused of

rape in Alabama, it was clearly an adjunct of the Communist party. Cannon

sat high in the party councils; in fact the legal defense organization had been

conceived in Moscow as a result of conversations between the American

Communist leader and William D. Haywood. The ILD collected funds on

behalf of Sacco and Vanzetti, Mooney and Billings, and the Scottsboro boys,

but at least a part of it was diverted into the general treasury of the im-

pecunious Communist party. The editor of its newspaper The Labor De-

fender was Max Schatchman, a Communist and a trusted associate of the

national secretary; the assistant national secretary was Martin Abern, a Com-

munist and a member of Cannon's coterie.¹¹

When Yetta Land entered the Johnson case in 1929, control over the In-

ternational Labor Defense had been wrestled from the grasp of James

Cannon; in October 1928 Cannon, Schatchman, and Abern were expelled

from the party for their Trotskyite heresy, and their places in the ILD were

taken respectively by Juliet Stuart Poyntz, Karl Reeve, and Carl Hacker.12

On its national committee were William Z. Foster, Benjamin Gitlow, and

Earl R. Browder; in fact, of the sixty-two names on its 1929 letterhead,

(Debs' had finally been removed), nineteen could be definitely identified as

Communist party members.13

The Ohio Criminal Syndicalism case was not one of the most important

in which the International Labor Defense participated, but the organization

attempted to use it for purposes of propaganda and fund collection. A press

release on November 23, 1929, with a blaring headline, "STEEL TRUST

IN OHIO CONVICTS 3 OF SYNDICALISM. TEN YEAR TERMS RE-

SULT OF AUGUST 1 MEETING," told the ILD version of the events in

Martins Ferry and the trial in St. Clairsville:

It took but five minutes for a steel trust jury to convict Tom Johnson,

Charles Guynn and Lil Andrews, members of the Communist Party, on

charges of "criminal syndicalism" . . . . The three were arrested on In-

ternational Red Day, August 1, when the police at Martins Ferry at-

tacked a demonstration of 1000 workers, breaking it up with great bru-

tality.

Johnson, Guynn and Andrews face a sentence of 10 years each and the

steel trust, as part of the terror reign being waged against all militant

workers, has stated its determination to see to it that these workers are

railroaded . . . .14

A further announcement in December opened a campaign for funds:

The three young Ohio workers . . . are still behind the bar because

the authorities have gotten their orders from the coal and steel bosses

not to accept anything but cash bail for their release pending the ap-

peal.

As a result the ILD today issued an urgent call to all workers to re-

spond with cash or liberty bonds . . . as loans or contributions . . . to

free the three . . . . The call is urgent!15

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98                                                OHIO HISTORY

 

The International Labor Defense was not fully able to exploit the Johnson

case for its own political objectives partly because of the intervention of the

American Civil Liberties Union. Organized in 1920 to defend the cause

of civil liberties against government encroachment, the ACLU had partici-

pated most notably in the case of John T. Scopes indicted for the violation

of Tennessee's anti-evolution statute. This group of cooperating attorneys

with its legal expertise was attractive to the under-staffed ILD.16 On October

22, 1929, Jack Rose, the ILD's acting secretary for the District of Ohio and

Virginia, wrote to ACLU co-director, Roger Baldwin, in New York City.

In his letter Rose charged that free speech and free assembly were being de-

nied in the Ohio mining towns; "even private meetings of organizations or

groups held indoors are prohibited without a permit." He informed Bald-

win that the prosecuting attorney had indicated a willingness to withdraw

the indictments in Gannet and Yoki and in Johnson if "we will promise to

keep out of Belmont County--otherwise . . . they will be pressed and an ex-

ample made," and he asked the ACLU for assistance in the two criminal

syndicalism cases.¹⁷ Four days later Forrest Bailey, co-director with Baldwin

of the American Civil Liberties Union, contacted the Cincinnati attorney,

Alfred Bettman. Bailey told Bettman about the summer arrests at Martins

Ferry and the prosecutor's condition for dropping the cases. "Of course,"

he wrote, "the Communist brethren will have no inclination whatever to

get out of the county." The alternative, however, might not be "litigation,"

but further "diplomacy" and a "frank discussion with the prosecuting of-

ficers." "The best way," Bailey stated, "to deal with radicals of this type is

to let them talk their heads off. They can do no harm merely by talking."¹⁸

Alfred Bettman need not have been told of "the best way to deal with

radicals." The brother of the Attorney General of Ohio, Bettman had been

in Washington during the First World War as an assistant to the Attorney

General in charge of the enforcement of the Espionage Act. He had assisted

in the preparation of the government briefs in the five cases, including Debs

and Schenck, in which the act was interpreted by the United States Supreme

Court.¹⁹ At the same time, however, Bettman had not been carried away by

wartime emotion; along with his associate, John Lord O'Brian, he recog-

nized the necessity of preserving constitutional rights: again with O'Brian he

was responsible for the commutation by President Wilson of the harsh sen-

tences meted out to Espionage Act defendants.²⁰ In 1919 he left the Justice

Department, denounced the "Palmer Raids," and testified before a House

committee against a proposed Federal sedition act.²¹ Asked by a congressman

whether current statutes reached a man who goes to a hall and tells people

to rise against the government of the United States, he replied in the nega-

tive, and then he continued:

And now let us look at the circumstances of your case. The man does

it all by himself. Nobody encourages him. No organization supports or

inspires him. He thinks up a rebellion all by himself. He hires a hall by

himself. He makes his speech all by himself. Nobody introduces him.

He makes his speech. And nothing happens. That is your case. Nothing

happens. Well, nothing happens.²²

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THE JOHNSON CASE                                                99

 

But something had happened in the Johnson case. The three defendants

had been convicted and a motion for a new trial had been overruled. Be-

fore committing itself to participation in an appeal, the ACLU corresponded

extensively with Cincinnati attorney Alfred Bettman, who reported in Jan-

uary 1930 to the ACLU office the result of a Cleveland conference with Mrs.

Land, two other ILD representatives, and a member of the Communist

party. The lawyer had no illusions about the designs of the International

Labor Defense and had objected strenuously to a strategy which would in-

clude a third attorney to argue "the merits of the Communist party's posi-

tion-in other words to use the trial for propaganda purposes," and he had

issued an ultimatum. Either the Johnson case would be predicated exclu-

sively on legal issues, or he would not associate himself and the American

Civil Liberties Union in further litigation. The ILD representative, he

concluded, had reluctantly "acquiesced, but I shall insist, so long as I remain

in the case on treating it as a law case in a court of law."²³

Bettman had assessed the ACLU position correctly. There would be no

temporization and no compromise; the price of ACLU cooperation was its

control over the constitutional argument and the ILD's relinquishment of

propagandistic tactics. To Bettman, on January 8, Bailey responded that "we

ought to go out altogether rather than let these fanatics throw the case

away by their propagandistic strategy." And as he explained the issue a

week later to J. Louis Engdahl of the International Labor Defense, "It was

a question of which lines seem to you of greater importance--the coopera-

tion of our organization and its legal representative or the carrying out of

the policy proposed in the Cleveland conference."24

Forrest Bailey was confident that confronted with the alternative and the

threat, the Communist-front organization would capitulate since it needed

ACLU cooperation "so badly" its leaders would "for once yield on their

points of doctrine."²⁵ The ACLU official was right; for a time there were

no further attempts by the ILD to intrude its ideology into the appeal of

the Johnson case. There were, however, other problems in the collaborative

efforts of the two organizations. For example, Mrs. Land objected to the

choice of a certain Cleveland attorney to serve as a liaison between her of-

fice and Alfred Bettman. In December 1929 she had written to Bailey that

"under no circumstances shall we have anything to do with him whatso-

ever."²⁶ Again, on January 16, 1930, Bettman apprized the ACLU's national

office that his name was being used to solicit contributions for the Johnson

appeal. There was nothing, Bailey answered, that could be done about it;

the ILD "had its own ideas and methods in fund-raising campaigns."²⁷

More significant from Alfred Bettman's perspective were the difficulties

posed by association with the ILD's legal representative. As Bettman re-

viewed the legal record in the Johnson case and the motion for a new trial,

he was concerned that the constitutional issue--"police suppression of a

meeting and of propaganda before it really got started"--had not been prop-

erly raised.²⁸ In the motion for a new trial Mrs. Land had written an ex-

tensive and emotional but not a careful argument questioning the suffi-

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100                                               OHIO HISTORY

 

ciency of the evidence, examining the contents of the pamphlet, and con-

demning the conduct of the prosecuting attorney. She had covered the con-

stitutionality of the Ohio Criminal Syndicalism Act, in only one lengthy sen-

tence, but had made no reference to relevant Supreme Court precedents:

One does not have to cite authorities to be firmly convinced that the

Criminal Syndicalism Law is unconstitutional, that the Act is iniquitous

in view of the fact that it stifles opinion, freedom of thought and free-

dom of expression, is repugnant to the Constitution of the United States,

openly and definitely violates every Civil Liberty guaranteed by the

bill of rights, and is regarded by the vast majority of legal authorities,

and by the judiciary of this country as a mere relice of the war hys-

teria.²⁹

Bettman evidently questioned Mrs. Land's competence. "I kept advising

Mrs. Land," he explained to Bailey on January 16, "as to what she should

do to accomplish this [the presentation of the constitutional issue], but either

she did not know how to follow the advice or she was intimidated . . . ."

He had had no choice but to rely on her to handle the situation intelligent-

ly; now that she had failed, he had only one further tactic to pursue: "to

argue them [the "constitutional points"] anyhow, getting away with it the

best I can."30

The "best" Alfred Bettman could do was clearly sufficient. By January

1930, when the Cincinnati attorney drafted the brief in the Johnson appeal,

there were three United States Supreme Court decisions available that per-

tained to the constitutionality of the Ohio Criminal Syndicalism Act and to

the facts in Johnson v. Ohio. Prior to 1925 it was still debatable whether

freedom of speech was protected by the First Amendment guarantee against

state infringement. In the important decision of Gitlow v. New York, in

1925 the defendants, among whom was the case's namesake, Benjamin Git-

low, were indicted and convicted under the New York Criminal Anarchy

Act for statements made in a "Left-Wing Manifesto."³¹ For the first time in

its history, the Supreme Court, speaking through Mr. Justice Sanford ap-

plied the First Amendment to the Federal Constitution to the individual

states. "For present purposes," he said, "we may and do assume that freedom

of speech and of the press--which are protected from abridgement by Con-

gress--are among the fundamental personal rights and 'liberties' protected

by the due process clause of the Fourteenth Amendment from impairment

by the states."³² But then the tone of the majority opinion changed. Sanc-

tioning a "bad tendency" test, pointing out that the New York Assembly

had itself defined the clear and present danger in the words of the legisla-

tion, the Court held that "police statutes may be only declared unconstitu-

tional where they are arbitrary or unreasonable attempts to exercise author-

ity vested in the State in the public interest.^"33 The New York Criminal

Anarchy Act was neither "arbitrary" nor "unreasonable."

Two years later the California Criminal Syndicalism Act, after which the

Ohio statute had been modeled, was before the Supreme Court for review

in the Whitney case. Anita Whitney, Wellesley graduate, prominent suffra-

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THE JOHNSON CASE                                               101

 

gette, and member of the Communist Labor party had been convicted in

April 1920 and sentenced to one to fourteen years in San Quentin for viola-

tion of the state's syndicalist legislation.³⁴ Again in an opinion by Justice

Sanford, the Supreme Court denied a claim that the California act on its

face or as applied to the defendant was repugnant to the First and Four-

teenth Amendments to the United States Constitution.³⁵ Mrs. Land's state-

ment that "one does not have to cite authorities to be firmly convinced

that the Criminal Syndicalism Act is unconstitutional" was clearly unten-

able.

On the face of it, the holdings of the Supreme Court in Gitlow v. New

York and in Whitney v. California disposed of at least one of the constitu-

tional issues in the Ohio Criminal Syndicalism case. There was no significant

difference between the terminology or the objectives of the California and

Ohio legislation; Mrs. Whitney had merely attended a convention of the

Communist Labor party; Benjamin Gitlow had been the business manager

of the magazine, Revolutionary Age, in which the "Left-Wing Manifesto"

had been published; Tom Johnson and his two comrades had been con-

victed of distributing an inflammatory pamphlet.36 But there was one

Supreme Court case that offered hope of reversal in Johnson v. Ohio. On

the same day that the Supreme Court affirmed the conviction of Anita

Whitney, it handed down its opinion in Fiske v. Kansas.³⁷ The defendant in

Fiske was tried and convicted under the Kansas Criminal Syndicalism Act,

passed in 1920, with language paralleling that of the Ohio statute. Fiske

had secured members for a Worker's Industrial Union, a branch of the

Industrial Workers of the World; he had moved to quash the information

(a substitute procedure for an indictment) on the ground that it failed "to

specify the character of the organization" for which he was alleged to have

obtained new associates. The motion had been overruled. At the trial of the

case the only evidence offered by the state to prove that the Industrial

Workers of the World advocated criminal syndicalism was the preamble to

its constitution. Printed on its membership blanks, the preamble declared

among other things, that "between these two classes ["the working people

and the employing class"] a struggle must go on until the workers of the

world organize as a class, take possession of the earth, and the machinery

of production and abolish the wage system," and that "by organizing indus-

trially we are forming the structure of the new society within the shell of

the old.^"38

The United States Supreme Court later in a unanimous opinion by Jus-

tice Sanford found this evidence insufficient for conviction:

There is no suggestion in the preamble that the industrial organiza-

tion of workers as a class for the purpose of getting possession of the ma-

chinery of production and abolishing the wage system was to be ac-

complished by any other than lawful methods; nothing advocating the

overthrow of the existing industrial or political conditions by force,

violence or unlawful means. And standing alone, as it did in this case,

there was nothing which warranted the court or jury ascribing to this

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102                                                 OHIO HISTORY

 

language either as an inference of law or fact, "the sinister meaning at-

tributed to it by the state."³⁹

Although Alfred Bettman's appellate brief in Johnson v. Ohio is no longer

available, it is clear from his correspondence that he predicated his case on

the theory of Fiske v. Kansas. In a wire to Forrest Bailey, December 18, 1929,

he explained that Justice Sanford's opinion turned on the "point of whether

[the] statute  . . . applied  in  Particular case becomes unconstitu-

tional," and he contended further that Johnson raised "a fundamental ques-

tion . . . which I would consider as more clearly presenting civil liberties

issues than if case were one of clear inapplicability of statute . . . ."⁴⁰ Six

days later he provided Bailey with a careful discussion of the facts in the

Ohio case and the Fiske principles:

The case against the men which the court sought in its charge to base

upon aiding, abetting, procuring, etc. was feeble to the vanishing point.

As for the case against the woman, at the maximum it consisted imme-

diately after her arrest, throwing these dodgers into the air in the midst

of a large crowd which had, to some extent, been assembled by the ad-

vertising of the meeting.

So, if the Fiske case or the principles therein used are to be inter-

preted as prohibiting the imprisonment of persons on such excessively

skimpy proof as to make the imprisonment in effect a suppression of

even getting started on an expression of opinions, threats and so forth,

such as contained in the dodgers, then this is clearly a case of that na-

ture.⁴¹

To Bettman, the decision in Fiske v. Kansas reflected the principle that

the state must have sufficient evidence to prove a violation of its criminal

syndicalist statute; beyond that it could not penalize "opinions, threats and

so forth" on the basis of what might be said or threatened, but of what was

actually expressed or advocated.

Johnson et al. v. Ohio came up for hearing before the Seventh District

Court of Appeals for Belmont County on Monday, May 12, 1930. "The

court," Bettman wrote to the ACLU, "was composed of three judges, was

most polite to me and gave me ample time. I had the feeling, however, that

it was more courtesy than understanding. I made the Fiske case prominent

and fancy the judges are going to read it, and it may turn the trick."⁴²

Alfred Bettman did not have to wait long to see if Fiske v. Kansas turned

the "trick." In a unanimous decision on May 24, 1930, the Belmont County

Court of Appeals compared the criminal syndicalism act with the language

of the handbill, dissected the Gitlow and Fiske cases, and held that the

judgment of the trial court was against the "manifest weight of the evidence

and the law." The distinction between Gitlow and Fiske, wrote Judge

James W. Roberts for the court, "is substantially this":

The language complained of in the Gitlow case--which was not a

statement of abstract doctrine nor a matter of prediction of future in-

dustrial disturbances and revolutionary strikes. It directly advocated and

urged in violent language, industrial disturbances and revolutionary

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THE JOHNSON CASE                                                103

 

mass action for the overthrow of the government. It was not an expres-

sion of philosophical abstraction but necessarily implied the use of

force and violence in accomplishing the changed governmental condi-

tions advocated and urged. In the Fiske case a rever[s]al of the convic-

tion was entered for the reason that it could not be said with certainty

or positiveness, that the language for which Fiske was held responsible,

advocated or urged that the ends sought to be accomplished would be

brought about by violence, or the overthrow of existing political con-

ditions would be accomplished by force or unlawful means, but that the

language was not inconsistent with governmental changes and substan-

tially different conditions resulting from persuasion, conviciton by ar-

gument and other peaceful and lawful endeavor.⁴3

For Judge Roberts the issue in Johnson was whether the pamphlet fell

within the category of incitement or of peaceful persuasion. The fact that

Tom Johnson, Lillian Andrews, and Charles Guynn were avowed Com-

munists was irrelevant; the distribution of the handbill on International Red

Day was "unimportant." What was significant was the language used in the

literature itself. The handbill might well have been "intemperate"; it

might well have advocated governmental reform. But its "vague declarations

and assertions" could not be construed as exhorting immediate change by

force and violence. The literature made certain predictions, and these were

"improbable and absurd." But it did not spur men to action; it did not lead

spectators to barricades. "There is," Roberts concluded, "in this document

no suggestion of immediate or other action on the part of the audience to

do any act prohibited by law. Reforms and change of government have oc-

curred in the past by peaceful and not unlawful methods of violence and

bloodshed. War--so-called--has frequently been prosecuted against existing

evils by enforcement of law and by persuading and convincing the people

of the desirability of change." The distribution of the handbill by three

Communists on International Red Day, 1929 in Martins Ferry, Ohio, was

no crime; the "court cannot say with the positiveness required by law, that

the utterances must necessarily be construed in such manner as to constitute

a violation of the criminal syndicalism statute."⁴⁴ Judgment reversed and

case remanded.

Judge Roberts' opinion in Johnson et al. v. State of Ohio went unre-

ported; its impact on Ohio law nonexistent. But the case that engendered

the decision has contemporary relevance. Alfred Bettman and the American

Civil Liberties Union were not duped by Yetta Land and the International

Labor Defense. Bettman and Bailey were well aware of the ILD's motives

and objectives; they knew that ideology inspired its tactics; they recognized

its willingness to sacrifice comrades for presumed political advantage. With-

out trust in the ILD, but with discernment, Bettman and the ACLU de-

flected the Johnson case from a Communist sermon from the witness chair

to the channels of "a law case in a court of law."

 

THE AUTHOR: David L. Sterling is an

assistant professor in the history depart-

ment at the University of Cincinnati.

• 10