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73 U. Cin. L. Rev. 9 (2004-2005)
Unlawful Advocacy and Free Speech Theory: Rethinking the Lessons of the McCarthy Era

handle is hein.journals/ucinlr73 and id is 21 raw text is: UNLAWFUL ADVOCACY AND FREE SPEECH THEORY:
Martin H. Redish
To historians, the Cold War in recent years has become quite hot.
More than twenty years after the historical book on the so-called
McCarthy era of the late 1940s and early 1950s in the United States
appeared to have been irrevocably sealed, startling revelations in the
1990s of previously secret documents--documents whose very existence
was unknown except to a very few-appeared dramatically to alter well
accepted understandings of historians about this troubled period in
American history. During that era, when the nation first began to grasp
the gravity of the threat posed by the Soviet Union and the Eastern Bloc
nations to our national security, both the government and private
institutions imposed extensive and severe punishment on American
Communists, and often on any American who at one time had been a
Communist or even suspected of being a Communist and failed to
repudiate those connections.
Once the McCarthy era ended, historians vigorously debated whether
such suppression was ever justified by anything other than the nation's
naked ideological repugnance for Communism. Many concluded that,
whatever dangers the Soviet Union and its allies may have presented,
American Communists caused no real threat to our internal security.
Rather, the expression of national security concerns was merely a
subterfuge, strategically designed to justify the persecution of those who
held repugnant political views. Others, however, continued to see
American Communists as nothing more than a tool ofJoseph Stalin and
the Soviet Union. In the words of a respected group of historians, [t]o
their admirers and defenders, American Communists [were] usually...
seen as idealistic and committed radical populists. They built unions,
fought for racial and social equality, and battled fascism, often prodding
their reluctant fellow citizens to live up to America's democratic ideals.'
* Louis and Harriet Ancel Professor of Law & Public Policy, Northwestern University School of
Law. This Article will appear in Professor Redish's book, The Logic ofPersecution: Free Speech and the MkcCarthy
Era, forthcoming from Stanford University Press. It was first presented as the University of Cincinnati
College of Law's 2004 Robert S. Marx Lecture. Scott Watson's research was of enormous help in
preparation of this Article.
1. While the label McCarthy era has been widely used to describe this period in American

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