Words with "All the Effects of Force": Cold-War Interpretation

PETER STEINBERG'S THE GREAT "'RED MENACE" TELLS THE STORY OF THE 1949 SMITH Act trial of leaders of the Communist Party of the United States (CPUSA), which culminated in the 1951 Dennis v. United States decision. In that decision the Supreme Court upheld Judge Harold Medina's ruling that the First Amendment certainly does not extend to those who conspire to advocate the violent overthrow of the American government. The exposition is brilliant: Steinberg alternates between groups of chapters written from the perspective of the government and its prosecutors on the one hand, and the beleaguered CPUSA on the other. Telling the story of the prosecution of a small and by-then uninfluential political group may not seem to require the time and space it has taken, but if we focus on a shift in the conception of American language marked by the trial and the Dennis decision, we will find plenty to go on. The shift will seem as dramatic to "new" American literary historians as to a new, skeptical generation of legal theorists, and that is perhaps why, with the two disciplines now sharing much the same ground, Steinberg's good work is so timely. In the 1919 Schenck decision, the Supreme Court ruled that to decide if subversive language was not protected by the right to free speech the courts would have to test the direct relation between the writing and the prohibitable action. One could not shout fire in a theater if there were no fire, Justice Holmes wrote in the famous metaphor; if one did falsely shout, the falsity would be clear enough (where was the fire?), and the connection of the language shouted to the ensuing harm was present (for example, theatergoers trampling one another to get out). A court could expect the prosecution to demonstrate both clarity and presence. The high court thus used an abstract notion of proximitythat is, of language to action; of language intended to lead to action to the action itself-but tried to look away from the intention in the language and as exclusively as possible at the action, and in this way demanded the relevance of external evidence