Evening star., 1949-10-23
Holmes Doctrine Due for Study
|InReds' Appeal to High Court

toHigh
Holmes expression, should, per
Sc, constitute "clear and present
dangers. New York was one of
the first with a law making it a
felony to advocate anarchy
which the law described as "the
doctrine that organized Govern
ment should be overthrown by
force or violence or by assassina-
ton of its executive head or its
other officers"
A left-wing socialist named
Benjamin Gitlow was indicted and
convicted for writing an anarch-
istic manifesto and a circular
called "The Revolutionary Age
Again the supreme court upheld
the conviction, but this time
Justice Holmes, along with Justice
Brandeis, dissented vigorously
voicing the doctrine currently
worshipped by the New York
Communist defendants that a
legislature could not write a law
defining a specific act as consti-
tuting a real and present danger
Years passed and another wal
threat again quickened interest
in the curbing of radicals. Rep
resentative Smith, Democrat. OF
Virginia, got through Congress in
1910 Federal statute making ii
a felony to teach or advocate the
overthrow of the Government OF
the United States by force and vi
olence" The New York Commu-
nists convicted before Judge Har-
old Medina October IA were the
second batch. of radicals tripped
by that law.
And, ironically, the same men
were vocal rooters for the Gov
ernment's prosecutors when the
Smith Act was first used in Min
neapolis in November, 1941.
Then, the defendants were dis
ciples of Leon Trotsky who had
banded together as the Socialist
Worker Party, seized the AFI
Teamsters Union in Minneapolis
and formed workers defense
guard" as a nucleus OF Trotsky
Red Army" in America.
Winter Now Attacks Law.
Moscow Communists hate Trot-
skyites even more than they hate
capitalists. Carl Winter, then the
Minnesota Communist secretary
publicly applauded in 1941 wher
Henry A. Schweinhaut. now 9
Federal judge here. was sent tc
Minnesota to prosecute under the
Smith Act.
Winter, now the party's Michi-
gan director and one of the New
York convicted, now says the
Smith Act is unconstitutional.
AS happened in New York this
month, the Minneapolis defend
ants reiterated in 1941 that they
were Just a group of politicians
constituting no clear and pres
ent" danger to government.
Judge Schweinhaut recalls thai
one defendant slipped" on the
witness stand. Carried away by
his own description of Russia.
October revolution, he told how II
all began with "a little group o1
women factory workers in Petro.
grad"
my pencil flew when he pulled
that one" the Judge recalls now.
And. when Mr.. Schweinhaut got
up to talk. he dealt at length with
little" things that are "clear anc
present" dangers. Again and agar
he emphasized that "the revolu.
ton that overthrew the Car II
October began in February with
a little group of women. just 6
little group Of women factory
workers in Petrograd." -.
Mr.. Schweinhaut won his case
The Minneapolis Trotskyites wen
to Jail where one Of them, Grac.
Carlson, the Socialist Worker
Party vice presidential nomine.
last fall, became, ironically, {
Bible class teacher to fellow
women inmates of the Aldersor
reformatory.
Judges of the Circuit Court o.
Appeals upheld the Minneapoli.
conviction. The Supreme Court
rejected the defendant petition
that it be again reviewed. Thai
meant that the big issue Of gov.
ernment's right to jail, under the
Smith Act. those who talk" anc
advocate" was left undecided.
Now the New York communists
will fight it again. donning fol
themselves Oliver Wendell Holmes
cloak Of "clear and present
Iox