Yesterday U.S. president Joe Biden held a speech in Pennsylvania in which he incited the public against those who want to Make America Great Again.

The optics were a bit scary, …

Biden Launches Divisive Attack On MAGA

Related:

New York Times: A Rematch of Biden v. Trump, Two Years Early

The immediate strategy is self-evident. Rather than a referendum on his own presidency, which has been hurt by high inflation and low public morale, Mr. Biden wants to make the election a choice between “normal” and an “extremism that threatens the very foundations of our republic,” as he put it on Thursday.

Note that the ‘clear and present danger’ test was applied to Antiwar activists and Communists. The new McCarthyism is anyone against the status quo of war and neoliberalism, as seen by the recent smear campaigns, and blacklists of anyone challenging the Russia-Ukraine conflict narrative and the FBI raids on the Uhuru Movement/African Peoples’ Socialist Party.

The doctrine, he says, was invoked by the Supreme Court on a “number of occasions to limit freedom of speech. The doctrine of ‘clear and present danger’ stems from the period after World War I which saw some 1,900 federal prosecutions for peaceful speech, mostly for statements considered subversive because they encouraged resistance to the draft or otherwise opposed the war effort. Among the notable cases of that era was the prosecution and imprisonment of the leader of the American Socialist Party, Eugene V. Debs, which was upheld by the Supreme Court. The restrictive force of the doctrine was broadened in 1951 during the prosecution of 11 top US Communist Party leaders, when the Supreme Court ruled that if the climate is right for an evil to occur, the government may imprison people whose advocacy could create that evil at a future point. If the Supreme Court had adhered to this view, which it subsequently abandoned, the government would have had a powerful tool to crack down on all manner of speech that particular officials might find offensive.”

SourceWatch

Why the Judiciary Should Protect First Amendment Political Speech During Wartime

The real threat of persecution during the Cold War came from private actors, not the government. The legislature chose to expose supposed American communists in the public forum because the HUAC [House Un-American Activities Committee] could not authorize legal prosecutions in light of the First Amendment right to free association. Cold War persecution represented a new and more indirect avenue for the government to regulate expression; one that was equally as subversive as sedition legislation because it chilled the willingness of citizens to enter discussions about the war for fear of being seen as un-American or the enemy. HUAC carried the power of a legislative enactment because private business, religious, and political groups sanctioned dissenters with loyalty oaths and blacklists. Redish notes, “Although the constitutional guarantee of free expression restricts what government may do, it is, paradoxically, the very same right that justifies the exclusion of private actors from the scope of the [First] Amendment’s restrictions.” The executive branch’s strategy of encouraging private non-association through Congressional persecution was, at its core, an effort to create ideological conformity against communism. The government’s pursuit of communism was kept secret for thirty years, skewing historical interpretations of the period. The result of executive secrecy was to distort the public forum with misinformation. The enduring lesson of the Cold War is that a democracy is a two-way street: if the government can make the private lives of its citizens into public knowledge, then citizens can also petition the government for information about the war.

Realizing this, dissenters to the Vietnam War relied heavily on the public forum and “the great benefit of vigorous debate …to educate citizens about the issues.” The public’s understanding of the Vietnam War was rarely advanced by congressional investigations of the executive branch. Political pressure restrained legislators from authorizing legitimate inquiries into the executive branch’s conduct during and after the war. The executive branch used programs like COINTELPRO and Project MERRIMAC to “disrupt,” “intercept,” “harass,” “sabotage,” and “assault” members of the New Left who opposed the Vietnam War. The secrecy of the Nixon Administration during the Vietnam War presented the Supreme Court with an opportunity to protect the public’s First Amendment right to fully understand and discuss the executive branch’s war policy.

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Justice Fred Vinson’s majority opinion, relying on a clear and present danger analysis, validated the persecution of public citizens for their associations with the American Communist Party. Dennis, as Rabban argues, “marked both the apex and the turning point of the Supreme Court’s reliance on the clear and present danger test” because it had become so differently applied that it was no longer coherent. The majority treated constitutionally-protected advocacy of communism as punishable incitement. Rabban notes, “the Supreme Court reverted to the restrictive interpretation of clear and present danger that marked its original formulation by Holmes in Schenck.” Instead of moving forward with Justice Holmes’ marketplace of ideas metaphor in the mold of his Abrams dissent, subsequent courts slowly became more and more deferential to the executive in their application of the clear and present danger test. Judge Hand and Justice Holmes should be honored for their First Amendment foresight and commitment to peacetime speech rights. They were willing to protect communicative liberty generations before such views became the judicial mainstream. Section II concluded that the persecution strategies pursued by the executive branch during the Cold War, affirmed in Dennis, were substantive limits on democratic deliberation. The executive branch was so successful in curtailing American communism because the judicial branch affirmed that the executive can, in the interests of the war effort, assert “monopoly control” over the marketplace of ideas.

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During the United States’ first wars, the executive branch propagated the notion that any citizen who disagreed with the war policy was disloyal to the nation. The judicial and legislative branches established the executive’s inherent wartime power to prosecute dissent as a necessary means of preserving national unity. Such restrictions on speech had a lasting, not temporary, effect on First Amendment expression because they extended and normalized the executive’s wartime powers to apply even in the absence of armed conflict. This effort to bridge wartime and peacetime, to assume extraordinary authority before and after the war, can be understood by examining three historical episodes: (1). President Adams original support for silencing his Anti-Federalist opponents for the sake of national unity, (2). President Lincoln’s indirection regulation of speech by persuading citizens to accept broad executive power during the Civil War, and (3). President Wilson’s propaganda control over what speech could enter the public forum during World War I.

House Un-American Activities Committee

HUAC investigations led to Hollywood blacklists

In 1946 HUAC became a permanent House committee, charged with investigating subversion in the United States. In 1947 and 1951 it investigated alleged Communist Party influence in Hollywood and the motion picture industry. As a result of these and subsequent hearings, nearly 300 actors and others employed in the movie industry were blacklisted or prevented from working. Many of those called to testify before HUAC pleaded the Fifth Amendment and refused to testify. Such refusal was often taken as tantamount to guilt, and many individuals were cited for contempt of Congress. Others did testify. Among them was noted film director Elia Kazan, who named numerous people who he believed were communist sympathizers, and they too were blacklisted.

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HUAC led to targeted investigations by McCarthy, chilling of First Amendment freedoms

HUAC fed off the hysteria of the cold war and anti-communism, paving the way for Sen. Joseph McCarthy, R-Wis., to begin hearings in the Senate in 1953. Between HUAC and the McCarthy hearings, Congress held broad, roving investigations into the political activity of many Americans suspected of being communists or communist sympathizers. The hearings also investigated many who did not hold communist views, creating a climate of political intimidation that came to be called “red baiting” or McCarthyism. The impact of these hearings was to ruin the careers of many individuals and to foster a political paranoia toward anyone suspected of holding contrary political views or of joining suspected political organizations.