Sacher v. United States

The five attorneys who volunteered to defend the communists in the Smith Act trial of 1949 were familiar with leftist causes and personally supported the defendants' rights to espouse communist views. They were Abraham Isserman, George W. Crockett, Jr., Richard Gladstein, Harry Sacher, and Louis F. McCabe.[3][4] Defendant Eugene Dennis represented himself. The ACLU was dominated by anti-communist leaders during the 1940s, and did not enthusiastically support persons indicted under the Smith Act. However, the ACLU did provide an amicus brief for the Foley Square defendants, endorsing a motion for dismissal.[5]

The defense deliberately antagonized the judge by making a large number of objections and motions,[6] which led to numerous bitter engagements between the attorneys and Judge Medina.[7] Out of the chaos, an atmosphere of "mutual hostility" arose between the judge and attorneys.[8] Medina came to believe that the defense attorneys were using the trial as an opportunity to publicize communist propaganda, and that they deliberately disrupted the trial using any means they could.[9] Judge Medina attempted to maintain order by removing defendants who were out of order. In the course of the trial, Medina sent five of the defendants to jail for outbursts, including Hall because he shouted "I've heard more law in a Kangaroo court", and Winston – an African American – for shouting "more than five thousand Negroes have been lynched in this country".[10] Several times in July and August, the judge held defense attorneys in contempt of court, and told them their punishment would be meted out upon conclusion of the trial.[11]

Legal scholar Michal Belknap writes that Medina was "unfriendly" to the defense, and that "there is reason to believe that Medina was biased against the defendants", citing a statement Medina made during pretrial activity: "If we let them do that sort of thing [postpone the trial start], they'll destroy the government".[12] Medina's hostility towards the defense may have been exacerbated by the fact that another federal judge had recently died of a heart attack during a similar trial involving the Smith Act;[9][13] and Medina came to believe that the defense was deliberately trying to provoke him with the goal of achieving a mistrial.[14] Belknap asserts that the defendants could "insist with complete justification that they were the targets of a political prosecution", and that "rather than attempting to prove eleven individuals guilty of criminal conduct, the prosecution mounted an attack on the CPUSA."[15] Legal scholar Arthur Sabin writes that one of the jurors stated that "we must fight communism to the death" and spoke of his desire to "hang those Commies".[16]

Immediately after the jury rendered a verdict, Medina turned to the defense attorneys saying he had some "unfinished business" and he held them in contempt of court, and sentenced all of them – including future Congressman George W. Crockett, Jr. – to jail terms ranging from 30 days to six months.[4][17] The attorneys had no opportunity to respond, and were immediately handcuffed and led to jail.[18][19]

The defense attorneys appealed their own contempt sentences, which were handed out by Judge Medina under Rule 42 of the Federal Rules of Criminal Procedure.[20] The attorneys raised a variety of issues on appeal, including the alleged misconduct of the judge, and the allegation that they were deprived of due process because there was no hearing to evaluate the merits of the contempt charge. The attorneys also argued that such contempt convictions would prevent future defendants from obtaining counsel, because attorneys would be afraid of judicial retaliation.[1][21] The attorneys' initial appeal to the federal appeals court was not successful: the court reviewed the Medina's actions, and reversed some specifications of contempt, but affirmed the convictions.[22] The attorneys then appealed to the Supreme Court which denied the initial petition, but later reconsidered and accepted the appeal.[23] The Supreme Court limited their review to the question "was the charge of contempt, as and when certified, one which the accusing judge was authorized under Rule 42(a) to determine and punish himself; or was it one to be adjudged and punished under Rule 42(b) only by a judge other than the accusing one and after notice, hearing, and opportunity to defend?".[1] The Supreme Court, in an opinion written by Justice Jackson, upheld the contempt sentences by a 5–3 vote.[24] Jackson's opinion stated that "summary punishment always, and rightly, is regarded with disfavor, and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes. But the very practical reasons which have led every system of law to vest a contempt power in one who presides over judicial proceedings also are the reasons which account for it being made summary."[1]

• Clear and present danger
• Imminent lawless action
• List of United States Supreme Court cases, volume 343
• Shouting fire in a crowded theater
• Threatening the President of the United States
• Abrams v. United States, 250 U.S. 616 (1919)
• Brandenburg v. Ohio, 395 U.S. 444 (1969)
• Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
• Dennis v. United States, 341 U.S. 494 (1951)
• Feiner v. New York, 340 U.S. 315 (1951)
• Hess v. Indiana, 414 U.S. 105 (1973)
• Korematsu v. United States, 323 U.S. 214 (1944)
• Kunz v. New York, 340 U.S. 290 (1951)
• Masses Publishing Co. v. Patten, (1917)
• Schenck v. United States, 248 U.S. 47 (1919)
• Terminiello v. Chicago, 337 U.S. 1 (1949)
• Whitney v. California, 274 U.S. 357 (1927)

• Auerbach, Jerold S., Unequal Justice: Lawyers and Social Change in Modern America, Oxford University Press, 1977, ISBN 9780195021707
• Belknap, Michal R., Cold War Political Justice: the Smith Act, the Communist Party, and American civil liberties, Greenwood Press, 1977, ISBN 978-0-8371-9692-3
• Belknap, Michal R., "Foley Square Trial", in American political trials, (Michal Belknap, Ed.), Greenwood Publishing Group, 1994, ISBN 9780275944377
• Belknap, Michal R., "Cold War, Communism, and Free Speech", in Historic U.S. Court Cases: An Encyclopedia (Vol 2), (John W. Johnson, Ed.), Taylor & Francis, 2001, ISBN 978-0-415-93019-2
• Martelle, Scott, The Fear Within: Spies, Commies, and American Democracy on Trial, Rutgers University Press, 2011, ISBN 9780813549385
• Morgan, Ted, Reds: McCarthyism in Twentieth-Century America, Random House Digital, Inc., 2004, ISBN 9780812973020
• O'Brien, David M., Congress Shall Make No Law: the First Amendment, Unprotected Expression, and the Supreme Court, Rowman & Littlefield, 2010, ISBN 978-1-4422-0510-9
• Navasky, Victor S., Naming Names, Macmillan, 2003, ISBN 978-0-8090-0183-5
• Redish, Martin H., The Logic of Persecution: Free Expression and the McCarthy Era, Stanford University Press, 2005, ISBN 9780804755931
• Sabin, Arthur J., In Calmer Times: the Supreme Court and Red Monday, University of Pennsylvania Press, 1999, ISBN 9780812235074
• Starobin, Joseph R., American Communism in Crisis, 1943–1957, University of California Press, 1975, ISBN 9780520027961
• Walker, Samuel, In Defense of American Liberties: A History of the ACLU, Oxford University Press, 1990, ISBN 0-19-504539-4

• Text of Sacher v. United States, 343 U.S. 1 (1952) is available from:  Cornell  CourtListener  Google Scholar  Justia  Library of Congress  Oyez (oral argument audio)