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Red Scare in Court: New York Versus the International Workers Order.

University of Pennsylvania Press, 418 Service Dr., Philadelphia, PA 19104. 392 pp., $29.95.

On March 22, 1951, three separate yet strikingly similar events in the political history of the United States were unfolding simultaneously.

Former State Department official and accused communist Alger Hiss began serving a five-year prison sentence for perjury. Accused nuclear spy Julius Rosenberg, on trial in federal court, testified that he was a member--and an insurance client--of the International Workers Order (IWO). And, in a courtroom of the adjacent New York State Supreme Court building at Foley Square, the IWO was itself on trial, threatened with liquidation for posing a public "hazard" because of its leaders' close ties with communist organizations.

The IWO was a fraternal organization formed in 1930 by U.S. citizens and immigrants from 13 ethnic groups. In many ways it was a mainstream organization. Its lodges held musical and cultural events. Members donated blood and knitted for the war effort. Some 10,000 of them served in the armed forces, and 300 died in World War II. Its Russian Section was commended by the U.S. Army for financing the construction of a Flying Fortress bomber, and there was even an official IWO Day at the 1939 World's Fair.

In other ways, however, the order was anything but mainstream. In an era of widespread racial discrimination, it welcomed African-American members, including singer Paul Robeson, and the majority of its leaders were acknowledged communists. Its general membership acquiesced in their promotion of the social, political, and economic agendas of thc international socialist movement.

The IWO was pronounced a subversive organization by U.S. Attorney General Tom Clark in 1947. The listing, among other factors, led to an investigation of the IWO by New York State insurance regulators. They moved to liquiate the company on the grounds that its majority communist leadership had used the organization's funds to support radical political candidates and other "subversive" organizations. These actions, they concluded, constituted a "hazard" to the IWO's members and the public.

The regulators also claimed that these activities were inconsistent with thc IWO charter's commitment to U.S. democracy. The radical political activities thus were ultra vires, and the alleged charter violation, the officials asserted, constituted fraud. Thus, for the first --and, apparently, only--time ever recorded, a financially stable insurance company was driven out of business by government regulators solely because of its political connections and the activities of its leaders.

The IWO was represented in court by veteran civil trial lawyer Raphael Weissman and two radical civil liberties lawyers, Frank Donner and Arthur Kinoy, who later became a Rutgers law professor. The state was represented by a leading private trial lawyer, Paul Williams, who was appointed a special assistant attorney general for that purpose.

Throughout the litigation, the company's lawyers asserted that its business record, not its politics, was the only proper focus of the regulators and the courts. However, the lawyers' repeated motions to dismiss were held in abeyance by presiding Judge Henry Clay Greenberg until the bench trial produced overwhelming evidence of the radical political leanings of the IWO leadership. Of the order's leaders, only Rockwell Kent testified under oath that he was not a communist (adding sarcastically that, however, he had read that Franklin Roosevelt and Shirley Temple were Reds).

In a written decision allowing liquidation of the company, Greenberg agreed with the state that the insurance law's definition of public "hazard" could include political as wvell as financial concerns. The New York Court of Appeals disagreed, but stated that the court's record showed that continued operation of the IWO "would prove 'hazardous' in a financial sense." The U.S. Supreme Court declined to hear the IWO'S appeal.

The unraveling of the IWO is not an action adventure, and the minutiae of procedure in the chronological account of the IWO'S trial and appeals and the author's detailed explanations of legal technicalities are at times ponderous. Yet his work displays fine scholarship not only of dusty records but also of issues that he calls "far from quiescent ones, breathing, as they did, fire from the place where politics meets the law--all at a most provocative time."

It was that meeting of law and politics that fueled the IWO'S persecution. Although the book's introduction by Howard Fast (himself imprisoned for contempt during the Red Scare) warns that the IWO story "must be read and understood, so that nothing like it will ever happen again," the author is less sanguine. "Inter arma silent leges," he warns. During war, the courts remain silent.

The reader may feel that the real heroes of this book are the lawyers who defended the IWO and others who were persecuted for their politics during the same era. Some of the lawyers depicted, like Donner and Kinoy, were truly radical practitioners engaged in continuous skirmishing with the government. Others, like Weissman, were technicians--perhaps aligned for the moment with liberal interests, but fundamentally courtroom warriors, whatever the cause.

Indeed, in the IWO case and others of the Red Scare era, we see the dark side of Justice Holmes's famous admonition that "it is required of man that he should share the passion and action of his time, at the peril of being judged not to have lived." The antidote to the judge who shares the passion of the times too much is the adversary system and the jury. No jury heard the IWO case.
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Copyright 1993, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Rooks, James E., Jr.
Article Type:Book Review
Date:Dec 1, 1993
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