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Blacklists And Contempt Of Congress

Dalton and Cleo Trumbo at the 1947 UHAC Hearings.
Dalton Trumbo with his wife, Cleo, at the House Un-American Activities Committee hearings in 1947.
Photo via Wikimedia Commons.

Contempt of Congress is on a lot of minds these days. The House cited two of the last four attorneys general for refusing its demands, and one of the impeachment articles against President Donald Trump is essentially a contempt charge, although it is framed as obstruction.

The two attorneys general who were cited, President Barack Obama’s appointee Eric Holder and current officeholder William Barr, are about as philosophically opposite one another as they could be. Depending on your own political outlook, you probably consider one of them a hero and the other a schmuck. Yet each defied congressional demands that they considered overreaching infringements on executive branch prerogatives.

It’s funny how time can change perspectives. If you have read much about the postwar Hollywood blacklist, or if you saw the 2015 film “Trumbo,” you know about the Hollywood Ten. These writers and directors were subpoenaed to appear before the House Un-American Activities Committee. The committee demanded that they disclose whether they had ever been members of the Communist Party, and that they name others in the entertainment industry with known or suspected communist sympathies. All 10 refused to name names, and all ultimately served jail time after being prosecuted by the Justice Department. They were thereupon blackballed from working in the film industry – at least under their own names.

Today we view them as victims of unwarranted persecution for political beliefs that are protected by the First Amendment. Many also consider them heroes for defying congressional overreach, in most cases at great personal cost. Dalton Trumbo, the best-known member of the Hollywood Ten, worked around the blacklist by moving to Mexico and writing screenplays under pseudonyms. His script for 1953’s “Roman Holiday” won an Academy Award for best story (and also bolstered Audrey Hepburn to a win for best actress). But Trumbo was unable to collect his Oscar. The Writers Guild of America finally recognized him for the script in 2011, though posthumously, as Trumbo died in 1976.

Singer-songwriter Pete Seeger likewise refused to answer congressional questions about his political beliefs and was cited for contempt. He very nearly followed the Hollywood Ten (and others) to prison. Seeger was convicted in Manhattan’s federal district court by Judge Thomas Murphy after a nonjury trial in 1961. Murphy denied bail pending Seeger’s appeal, sarcastically referring the request to the appellate court “a couple of floors away” in the famous courthouse on Foley Square. The Second Circuit Court of Appeals did grant bail. A year later, it reversed Seeger’s conviction for technical flaws in the indictment.

By that time, the “Red Scare” that prompted the congressional excesses of the McCarthy era had receded. Trumbo himself was one of the first to break the Hollywood blacklist, with help from director Otto Preminger and actor Kirk Douglas. Preminger and Douglas publicly credited Trumbo with authorship of the scripts for “Exodus” and “Spartacus,” respectively.

I hear echoes of the Red Scare in the Russia collusion narrative about the 2016 election, which has failed to hold water, and in the broader concern about foreign “interference” in U.S. elections. Certainly Russians and others have made efforts to influence and manipulate U.S. public opinion and elections. An example many, though not all, Americans would consider relatively benign is the interactions between Israel’s Prime Minister Benjamin Netanyahu and recent U.S. administrations (cool toward Obama, mutually warm with Trump).

There were real Soviet spies, who did real national security damage, in the mid-20th century. None of them made movies. We did more damage to our American values than the Soviets ever could have accomplished on their own. Similarly, Vladimir Putin could scarcely have hoped to create as much American infighting over his government’s activities as we have seen since Trump took office. Then and now, members of Congress who saw patriotic and political value in pushing their investigatory envelope have played a key role in Moscow’s success.

I wish I could report that our constitutional checks and balances ultimately functioned as designed in the Hollywood Ten case. I can’t – but that does not mean the courts did not ultimately draw lessons that can help us navigate similar issues in our own time.

The Supreme Court refused to hear appeals from the Hollywood Ten. Amid the anti-communist fervor of the postwar years, the justices sidestepped the issue and kowtowed to the tenor of the times (as they had a few years earlier regarding wartime internment of Japanese-Americans). In a 1951 decision in Dennis v. United States, a 6-2 majority upheld the convictions of 11 leaders of the Communist Party of the United States of America on the theory that their prosecution was justified because communist ideology called for the violent overthrow of the government, even though the defendants were not accused of doing anything specific to foment or encourage violence. It was not until 1969, in Brandenburg v. Ohio (a case involving the Ku Klux Klan), that the court struck down legislative actions designed to punish association and advocacy rather than specific criminal acts. In our era, most legal observers have come to view the dissents that were written in the 1940s and ’50s as reflecting the correct balance between constitutionally protected private rights and legislative powers.

Congress has important work to do, and gathering information to direct that work is a core function of the legislative branch. Congressional subpoenas ought not to be taken lightly. But all branches of our government are meant to operate within limits. The courts are the key check on both congressional and executive powers. Sometimes they function in ways history eventually applauds, and sometimes they don’t. But we circumvent the courts entirely at our own peril.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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