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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 |
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
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-
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
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
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-
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-
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
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
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.
|
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 |