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Acts or Ideology? The Communists were talking, as usual, through their hats. But the implications of the indictments furrowed many a non-Communist brow. If the nation's top twelve Communists were convicted, would all other Communists be subject to arrest as party members? The non-Communist American Civil Liberties Union promptly, and somewhat sadly, announced that it would "undoubtedly be obliged to come to the assistance of the defendants." Said the A.C.L.U.'s John Haynes Holmes: "The indictment ... on its face ... in our judgment violates every principle of freedom of speech and press."
Tom Clark's lawyers protested that they sought no precedent for condemning an entire organization, many of whose members were doubtless innocent of any subversive intentions. They insisted that they were not trying to make all Communists guilty by association. Their case they said, had nothing to do with the Communist ideology, per se, but with specific acts of sedition.
These were arguments that could not be settled until the Government began its case in court. But one thing was clear before the fight up to the Supreme Court: if the charges were made to stick and were applied against other Communist leaders, the party would disintegrate or be forced underground.
*In 1943, the Supreme Court heard the late Wendell Willkie argue that a naturalized alien named William Schneiderman should not have his citizenship revoked on the grounds that he was a member of the Communist Party. The Supreme Court agreed, but declined, 5 to 3, to decide whether or not the Communist Party had advocated the violent overthrow of the Government.
† Never before used against the Communists, never fully tested in the courts, the Smith Act was applied in 1941 against members and hangers-on of the minuscule Socialist Workers (Trotskyist) Party, implacable foes of the Stalinist Communists. Result: 18 went to jail after the Supreme Court refused to review their conviction.