by Marjorie Heins. New York: New York University Press, 2013. 384pp. Cloth $35.00. ISBN: 978-0-8147-9051-9.
Reviewed by Daniel E. Smith, Department of Humanities and Social Sciences, Northwest Missouri State University. Email: desmith [at] nwmissouri.edu.
Anthony Lewis’ 1964 masterpiece Gideon’s Trumpet combined the meticulous craft of the historian, the constitutional analysis of the legal scholar, and the masterful storytelling of, well, Anthony Lewis. The late two-time Pulitzer Prize winner is rightfully viewed as the father of legal journalism, yet he set a standard to be emulated by legal scholars and historians as well. At its best, a work of legal history is a compelling narrative which informs – about interesting participants, about the historical events which framed a controversy or shaped an era, and about the development of legal precedent in ways that convey relevance to the reader’s world. Yet journalistic accounts often focus on the sensationalism of the events and the players, to the detriment of the legal issues. Even where legal analysis is included, it is frequently presented in overly simplistic terms in order to appeal to a less sophisticated mass audience. Or, worse, the writer’s subjective narrative overpowers the legal analysis, resulting in serious mistakes in the latter. Both historians and journalists tend to overemphasize the political and ideological, and to understate the legal. While judges are certainly political animals, it is mistaken – indeed contrary to the best scholarship – to view them simply as politicos manipulating legal rules for substantive outcomes (e.g., Epstein and Knight, 1997).
Legal scholarship is, however, not without its flaws in covering major cases and the evolution of law. The tendency is to focus on the doctrine to the detriment of the politics, rather than treating the two as an integrated whole. This is often true even of texts studying the evolution of law and social movements, where the emphasis is on the strategies, legal arguments and impact on the doctrine, and the affected lives are often discussed only in passing. One can read, for example, numerous scholarly texts on the development of equal protection doctrine without a clear and cogent connection to the various civil rights movements through which the doctrine developed. And this reviewer had completed law school and was a successful communications attorney before discovering – thanks again to Anthony Lewis (1991) – that New York Times v. Sullivan was a politically charged civil rights case. It is a rare book that meets Lewis’ standard, combining sophisticated legal analysis with compelling historical narrative. Rarer still is one that successfully takes on an era, as opposed to a single case, in ways that are both informative and engaging.
Marjorie Heins manages to pull off this [*288] rare feat in Priests of Our Democracy for three main reasons. First, she avoids the temptation to cast too broad a net. It is certainly true that, as stressed in Justice Felix Frankfurter’s words from which the book’s title was taken, academia is uniquely situated for the free-flow of ideas that the First Amendment was designed to protect. Even if that were not the case, by grounding her narrative in the teaching profession, rather than taking on the entire red purge, Heins more vividly demonstrates the real-world impact of investigations, hearings and restrictive legislation than would coverage of something as amorphous as “the American left.” And by focusing predominantly on New York City – its public school system and teachers’ unions – she is able to detail how much of the political tension found its roots in state and local politics. While providing the necessary national context for the anti-communist purge of the mid-twentieth century, she narrates the manifestation of the purge in New York City – the struggle between government officials and cooperative school officials, on the one hand, and the public schools, colleges, educators and organizations, particularly the Teacher’s Union, on the other. The heart of narrative is the 1949 Feinberg Law, from its precursors in the 1930s through its defeat in Keyishian v. Board of Regents (1967); and the parade of investigations of educators during the same time frame – the Rapp-Coudert Commission of the 1940s, the investigations of public school teachers by the Board of Education in the early 1950s, the McCarran Committee’s targeting of university professors in the mid-1950s teachers. Significant numbers of New York educators were, or had been, involved with the Communist Party; yet the investigations and purges included less savory motivations as well – union-busting, mundane local politics, and a healthy dose of anti-semitism to boot.
Second, Heins does a superior job of weaving accounts from personal interviews into the historical record and legal analysis. It is well-known that the anti-communist purges that cost people their careers and reputations damaged the radical left far beyond “the communists.” But the personal stories of dedicated educators such as Harry Slochower, Vera Shlakman, Harry Keyishian and George Starbuck, anti-communist crusaders like Saul Moskoff, and controversial Brooklyn College President Harry Gideonse, accomplishes two important objectives: it takes the reader beyond the well-treated cases of Dennis, Watkins and Yates, and the national controversies surrounding HUAC and Joe McCarthy; and it introduces historically important and heretofore relatively unknown personalities. This is not merely good storytelling, but renders Heins’ cautionary tale that much more compelling.
Third, by focusing on academic freedom, Heins shines a light on cases rarely treated in First Amendment discourse. Of the four cases handed down on June 17, 1957, aka “red Monday,” First Amendment orthodoxy focuses on the national cases of Watkins and Yates; Heins tells the story, and analyzes the doctrine, of Sweezy v. New Hampshire (1957). Slochower v. Board of Higher Education, (1956), and Keyishian, the central case in the book, are similarly obscure in First Amendment jurisprudence. The doctrine [*289] supporting academic freedom as a component of First Amendment jurisprudence which emerged from these cases, and the compelling language used by Justices Douglas (“a pall is cast over the classroom”), Warren (a “strait jacket upon the intellectual leaders in our colleges”), and Brennan, are arguably as important as the actual malice standard of New York Times v. Sullivan, or various incarnations of the Court’s obscenity test. The brilliant Geoffrey Stone’s Perilous Times (2004) takes on many of the same First Amendment themes present in Priests of Our Democracy, in a more comprehensive fashion, and draws many of the same conclusions regarding the American propensity to curtail, even demean First Amendment protection of unpopular viewpoints throughout our history. Yet Stone’s text does not highlight the impact of speech restrictions on academia. And his narrative, while similarly engaging, focuses on high-profile cases and broader impacts, as opposed to the personal stories of ordinary people affected by the chilling of free speech.
Hein’s narrative does lose some of the broader context of the national tug-of-war between communicative rights and anti-communism, as well as some of the collateral development of First Amendment doctrine. It is curious, for example, that Justice Brennan’s landmark decision in Sullivan, with its demand that “debate on public issues should be uninhibited, robust, and wide-open” and its expansive understanding of “chilling effects” on speech, is not even mentioned in a footnote, although that case perhaps more than any other case indicated Justice Brennan’s view of First Amendment freedoms. And Heins is at her weakest in the concluding chapters; the post-9/11 threats to academic freedom she discusses pale in comparison to the coordinated, systematic anti-communist efforts of the 1940s and 50s, consisting mostly of isolated statements, innuendo and criticisms from private sector groups. It would have been interesting had she considered contemporary attacks on academic freedom emanating from the religious right, as opposed to sporadic loyalty oaths and attacks on opposition to the Iraq and Afghanistan wars. For example, state policies attempting to impose creationism and other religious content in public schools – most notably in Kansas, Texas and Louisiana – can be properly viewed as affronts to academic freedom, as are legislative efforts such as Missouri’s Constitutional Amendment 2 passed in August 2012, which, while billed as protecting religious freedom in public places, is drafted to give public school students – at any level – the ability to “express their religious beliefs in assignments without discrimination,” plus provides them an opt-out from classwork contrary to their beliefs. In addition, mention might have been given to recent efforts by states to require public reporting of college faculty’s grades and student evaluations, as well as organizations encouraging students to record classes in an effort to “out” liberal faculty.
Priests of Our Democracy is an outstanding book, an engaging and insightful addition to First Amendment scholarship as well as constitutional history. Heins does for the anti-communist purge in education what Daniel Okrent’s Last Call (2010) does for Prohibition, with the excellent legal scholarship as a bonus. [*290]
Constitutional Amendment 2, August 2012 Primary Ballot, 2012 Ballot Measures, Missouri Secretary of State (2012). http://www.sos.mo.gov/elections/2012ballot/
Epstein, Lee, and Jack Knight. 1997. The Choices Judges Make. Washington, D.C.: CQ Press.
Lewis, Anthony. 1964. Gideon’s Trumpet. New York: Random House.
Lewis, Anthony. 1991. Make No Law: The Sullivan Case and the First Amendment. New York: Random House.
Mangan, Katherine. 2010. “Video Seems to Catch Professor in a Liberal Rant, but There's More to the Story,” The Chronicle, November 17.
Okrent, Daniel. 2010. Last Call: The Rise and Fall of Prohibition. New York: Scribner.
Stone, Geoffrey. 2004. Perilous Times: Free Speech in Wartime. New York: W.W. Norton & Co.
Dennis v. United States 341 U.S. 494 (1951).
Keyishian v. Board of Regents 358 U.S. 589 (1967).
New York Times v. Sullivan 376 U.S. 254 (1964).
Slochower v. Board of Higher Education 350 U.S. 551 (1956).
Sweezy v. New Hampshire 354 U.S. 254 (1957).
Watkins v. United States 354 U.S. 178 (1957)
Yates v. United States 354 U.S. 298 (1957).
Copyright 2013 by the Author, Daniel E. Smith.