In 1951, at the height of the nation's Cold War hysteria, a Pittsburgh judge and raconteur, Michael Musmanno, decided to strike a blow for freedom the best way he knew how: by shutting down a bookstore. After walking to a Communist Party bookstore across the street from the Allegheny County Courthouse, Musmanno spent $5.75 buying what historian Philip Jenkins' text The Cold War at Home calls "standard texts on Marxist-Leninist doctrine." Musmanno "proceeded to comb [the books] for language that might prove seditious intent."
Pennsylvania's sedition law prohibited "[a]ny writing, publication, printing, cut, cartoon, or utterance which advocates or teaches the duty ... of engaging in crime, violence, or any form of terrorism, as a means of accomplishing political reform or change in government." Based on Musmanno's purchases, charges of sedition were filed against three avowed Communists: Steve Nelson, Andy Onda, and Jim Dolsen.
As Nelson later noted, most of the material Musmanno bought was available in the public library. But back then you could find seditious intent almost anywhere you looked. As a New York Times obituary of McTernan notes, in other cases, government witnesses claimed that seemingly innocuous documents were actually written in an "'Aesopian language.' ... For example, they said, the phrase 'material progress in the Soviet Union' meant forcible revolution."
McTernan, who passed away in April, was a California attorney who specialized in defending accused Communists. He was among the very few lawyers willing to take the case, and he had his hands full just seeking an impartial jury. (One challenge McTernan faced: barring local movie theaters from showing I Was a Communist for the FBI -- which detailed the "heroism" of a witness against Nelson, since-discredited Red-baiter Matt Cvetic.) As Nelson recalled in his memoir Steve Nelson, American Radical, when his trial was separated from Onda and Dolsen's, he couldn't find a lawyer on his own. "We saw over 80 [lawyers] in Pittsburgh who said they were too busy or ... didn't practice criminal law," he wrote. "Some frankly admitted that they didn't want to become another Schlesinger, [a local lawyer who'd been] arrested, brought up for disbarment, and held in contempt of court, all because of his politics and whom he defended."
Nelson ended up representing himself in his trial, after "one night's study of The Art of Cross-Examination." Not surprisingly, he lost and got a 20-year jail term.
Nelson made the best of it, teaching his fellow prisoners that, for example, famed Pittsburgh Pirate Honus Wagner was a socialist. In the meantime, he finally found attorneys to appeal his conviction -- among them Victor Rabinowitz (whose daughter Joni is still a local activist today).
The state Supreme Court noted that Pennsylvania's anti-sedition law prohibited violence "against this State or against the United States." But as the Court noted, there was no evidence of "a seditious act or even utterance directed against the Government of Pennsylvania." Apparently, even the most die-hard Commie didn't see much point in overthrowing Harrisburg.
As for the language about action "against the United States," the federal government was quite capable of defending itself. And in 1956, the U.S. Supreme Court ruled that the federal anti-sedition law, the Smith Act, "pre-empted" the state law.
In an opinion by Chief Justice Earl Warren, the court ruled "the conclusion is inescapable that Congress has intended to occupy the field of sedition." If the behavior of Congressional Republicans isn't enough to convince you, Warren noted that Congress "has appropriated vast sums, not only for our own protection, but also to strengthen freedom throughout the world." As anyone who listens to George Bush knows, spending lots of money apparently wasn't enough -- but because the feds were trying so hard, Warren argued, sedition "is in no sense a local enforcement problem."
Warren's decision tossed out not only Pennsylvania's anti-sedition law, but similar laws in 33 other states. The case demonstrated that, even at times of crisis, law enforcement should proceed in accordance with reason and judicial restraint.
Unless, of course, we're at orange alert.