https://www.aaup.org/article/
~~ recommended by emil karpo ~~
It feels odd to be writing a review of this book about mathematician and activist Chandler Davis just days after the October 2023 death at age ninety-four of Natalie Zemon Davis, the legendary historian who was his wife and compatriot for their many years of marriage. Chandler died in September 2022 at age ninety-six. Among his last acts was organizing from his hospital bed the defense of a young Russian mathematician under attack by the Putin regime. Chandler and Natalie were intrepid defenders of free speech and academic freedom. In her foreword to this book, Ellen Schrecker describes Chan (as he was known among friends) as one of those “individual heroes who . . . thrust themselves into history because of their intense commitment to a better world.” The same could be said of Natalie, whom I once called a “historian of hope” because of her insistence on (in her words) “the possibility of communication and curiosity in a world divided by violence.”
It’s odd to be writing now, not only because my personal sadness is mixed with deep appreciation for author Steve Batterson’s careful exploration of the political, legal, and personal aspects of Chandler Davis’s challenge to the House Un-American Activities Committee (HUAC) investigations into communism in higher education but also because this book and these recent deaths might suggest a closure that simply isn’t the case. As Batterson points out in his last chapter, the challenges Chandler faced in the 1950s have returned with a vengeance in the form of red state governors and legislators seeking to police what is taught and thought in universities and to punish those teachers whose ideas are at variance with a reactionary political agenda. We are now experiencing what many are calling a new McCarthyism.
Batterson, a fellow mathematician (and now professor emeritus at Emory University), undertook The Prosecution of Professor Chandler Davis out of a certain curiosity about what had led the University of Michigan to dismiss the young instructor after his interrogation by HUAC in 1953. With Chandler’s (and Natalie’s) cooperation, and through extensive archival research, this mathematician has produced a compelling historical narrative that offers important insight into the actions and motives of the principal players.
A precocious student from a left-wing family, Chandler Davis entered Harvard at age sixteen. He attended graduate school there beginning in 1946, meeting Natalie Zemon, a Smith College senior, at a gathering of the Young Progressives, a Communist Party youth organization. Like many other members of their cohort, they responded to the party’s commitment to social justice and its critique of capitalism, but they were firm—as Chandler maintained at his HUAC hearing—in their opposition “to violent revolution as a means of achieving political change.” They married soon after, eventually ending up at the University of Michigan in 1950, where Chandler was hired as an instructor and Natalie pursued graduate work in history. They briefly joined the Communist Party in Ann Arbor as well as a liberal group, the National Council of Arts, Sciences, and Professions (NCASP). In 1952, as HUAC announced visits to Michigan, NCASP published a pamphlet—Operation Mind, written by Natalie and a friend—that was critical of the congressional committee’s attempts at “thought control.” Chandler, who was NCASP treasurer, paid for its printing and distributed it to his colleagues. As Batterson recounts it, amid Cold War, Red Scare hysteria, “a worker at the print shop found [its] message alarming.” Her husband conveyed their alarm and Chandler’s name to the FBI, which sent it on to HUAC. Batterson notes, “When Chandler later appeared before a HUAC subcommittee, a substantial portion of the questioning involved Operation Mind.” He never mentioned his wife’s authorship, and she was never interrogated or charged by HUAC and its affiliates. But the pamphlet continued to figure at every level of the case against him, including in considerations of his ultimate appeal to the Supreme Court.
Those called before congressional investigative committees often invoked the Fifth Amendment right not to incriminate oneself. Chandler’s father, Horace Davis, had used it, along with the First Amendment, when testifying before the Senate Internal Security Subcommittee in 1953. But appealing to the Fifth, which was taken to imply an admission of guilt, overshadowed the First, and Horace Davis and others like him were depicted in unsympathetic press accounts as “Fifth Amendment Communists.” As a result, when he received a subpoena from HUAC, Chandler felt he had to take the risk of using only a First Amendment strategy in his defense, even though it could lead to possible jail time for contempt of Congress. While the Fifth Amendment was a protective strategy for individuals, he saw the First Amendment as having an impact beyond himself and as a way of “challeng[ing] the constitutionality of the hearings in the courts.” If successful, he hoped, his case “might end the persecution of Americans for left-wing beliefs.” Principle always overrode practical considerations for Chandler Davis, even when the financial and personal costs were very high. Batterson characterizes this First Amendment strategy as “a perilous and principled approach.”
Davis knew that the constitutional right to free speech had been denied in 1949 by the Court of Appeals for the DC Circuit in the case of the Hollywood Ten (members of the Screen Writers Guild), but the Supreme Court had not yet ruled on the matter. He was convinced that the high court might be persuaded by a defense based on the writings of philosopher Alexander Meiklejohn, who argued that the guarantee of free speech in the constitution could not be qualified: “Congress shall make no law . . . abridging freedom of speech.” Meiklejohn went on to maintain that “since the investigative powers of Congress are restricted to their areas of legislative authority, the Communist question is outside their purview.”
Batterson tracks, in careful detail, the Davis case as it wended its way from his indictment in 1954 to the Supreme Court in 1959. There, based on its similarity to a case the court had just decided—that of Lloyd Barenblatt, who had based his appeal in Barenblatt v. United States on the First Amendment—the justices denied certiorari. Like Barenblatt, Davis was sentenced to (and served) six months in the Danbury Federal Penitentiary in Connecticut.
Providing important background material on the First Amendment court cases and the differing judicial philosophies revealed in majority and dissenting opinions, Batterson points to the contingencies of court membership to account for the result in Davis’s case: “Reviewing the court experience, a striking aspect was the integral part of (what might be called) extraneous factors in the outcome.” The location of various trials mattered, as did who served on the courts. For example, the machinations of Justice Felix Frankfurter, who opposed consideration of many First Amendment aspects in the 1957 case Watkins v. US and again in Barenblatt, played a major role in the court’s decision to uphold Barenblatt’s conviction for contempt of Congress. Batterson concludes—speculatively—that “were it not for Frankfurter’s aggressiveness in deleting a paragraph from the second draft of [Chief Justice Earl] Warren’s Watkins opinion, the outcome probably would have fulfilled Chandler’s long-shot objective of reining in HUAC.”
The Prosecution of Professor Chandler Davis also addresses the failure of academic freedom to protect Davis’s job at the University of Michigan. The “myth of academic freedom” in the book’s subtitle is an apt characterization of what happened. When Davis received his subpoena in 1953, the university’s president, Harlan Hatcher, concerned above all not to draw negative attention to his institution, advised the young math instructor to name names if HUAC required it—this was, after all, Hatcher said, the implication of the guidelines of the prestigious Association of American Universities for those under suspicion of communist ties. Disgusted by this advice, Davis concluded that the university was simply “an appendage of HUAC” if it would not protect his right to his political views on the grounds of academic freedom. He was more accurate than he knew. Batterson cites evidence from a 1958 supplement to the AAUP’s 1956 report, Academic Freedom and Tenure in the Quest for National Security, and from his own research in the university archives that Hatcher and the head of the ad hoc committee he had appointed to deal with the professors under interrogation met regularly with a HUAC investigator and with another unnamed government agent in the course of their deliberations.
While two of his colleagues (associate professor of zoology Clement Markert and associate professor of pharmacology Mark Nickerson) agreed to cooperate with university committees to the extent of explaining their past and present political affiliations, Davis refused even to acknowledge the fact that he was no longer a member of the Communist Party (CP). Batterson presents lengthy excerpts of the professor’s testimony before the university’s ad hoc committee—a set of logical arguments about his integrity, his belief in the free exchange of ideas, and his antipathy to indoctrination. Davis refused to answer a question about his membership on the grounds that the committee had no business asking about his political beliefs. When the chairman of the committee noted that he and others believed that CP membership was incompatible with free thought, Davis replied that he had already stated his commitment to free thought: “I will assert again at as much length as you like, and in as much detail as you like, that I am in favor of the free exchange of ideas; that I am not in favor of forming one’s ideas by dictation. If you believe that membership in the Communist Party ipso facto means believing otherwise, then you will have to conclude that I have denied it. I am not willing to comment on it.” The committee was offended by these arguments, concluding that it is “highly probable that he is using his professed principles as a means of avoiding full and candid disclosure of Communist affiliation.” They went on: “He has artfully contrived to preclude inquiry of him and thus patently lacks the integrity he claims to possess.” Not surprisingly, they recommended dismissal.
Hatcher dismissed Nickerson and Davis after much consultation with their respective departments, and with the FBI closely monitoring the situation, but he allowed Markert to stay on for another year, although both Nickerson and Markert had been forthright in admitting their party affiliations to the ad hoc committee. Batterson cites a comment from Ellen Schrecker’s book No Ivory Tower to explain Hatcher’s actions as coming from “the flawed, but common assumption that it was not possible to be an ex-Communist without becoming anti-Communist.”
Despite their experiences at Michigan, all three men managed not only to salvage their careers but also to attain distinction in their chosen fields: Davis and Nickerson in Canada and Markert at Johns Hopkins and then Yale. In 1990, after a long campaign by faculty members and others that failed to convince the president and the regents, the University of Michigan faculty senate apologized for “the failure of the University Community to protect the fundamental values of intellectual freedom at the time” and set up an annual lectureship (which continues to this day) on academic and intellectual freedom as reparation for the administration’s mistreatment of Davis, Markert, and Nickerson.
In addition to providing a rich account of the inquisitions of the 1950s, The Prosecution of Professor Chandler Davis provides food for thought about the fate of the First Amendment in our own times. These days, the absolutist interpretation of the amendment—invoked by Chandler Davis to protect his dissenting left-wing political views, and asserted not only by Alexander Meiklejohn but also by dissenting judges and justices in court cases from the period—has been taken over by the Right without the kind of objections offered by the majority opinions of the 1950s. The Barenblatt decision is a nice illustration. Writing for the Supreme Court’s minority, Justice Hugo Black, joined by Justices William O. Douglas and Earl Warren, asserted the primacy of the First Amendment and questioned whether the court had the right to decide on the reasonableness of enforcing it. Balancing the interest of the government against those who refused to reveal communist affiliations left out “the interest of the people as a whole in being able to join organizations, advocate causes and make political ‘mistakes,’ without later being subjected to governmental penalties for having dared to think for themselves. It is this right to err politically which keeps us strong as a Nation.”
Writing for the majority, Justice John Marshall Harlan attempted the very balancing that Black objected to. He noted that the Communist Party believed in “the ultimate overthrow of the Government of the United States by force and violence.” Therefore, “though we accept petitioner’s contention that compulsory disclosure of an individual’s association with unpopular and dissident causes impinges on First Amendment protections . . . we nevertheless conclude that in this instance such impingement is overcome by the superior governmental interest.” This echoed earlier statements in other cases, including the 1948 appeals court decision in United States v. Josephson, which affirmed the conviction of a lawyer for refusing to cooperate with HUAC: “When speech, or propaganda, or whatever it at the moment be called, presents an immediate danger to national security, the protection of the First Amendment ceases.”
I don’t know the history of the intervening jurisprudence between the 1950s and today, but it is striking to note how the uses of the First Amendment have changed in political discourse. In the 1950s, the absolutist interpretation was invoked in defense of dissident minorities on the left and repudiated by those who argued that communist ideas presented a “clear and present danger” to the democratic state. Now the absolutist interpretation holds sway, protecting all manner of dangerous speech, even if it provokes riots (like those on January 6, 2021, at the US Capitol) that seek to overturn democratic institutions and death threats that sometimes lead to actual attempts on the lives of those threatened. The prosecutors and judges in the various Trump cases have gone out of their way to explain why they are not infringing on his freedom of speech; there have been few, if any, citations of “clear and present danger” to justify denying his First Amendment rights. The criminal cases are considered apart from his First Amendment claims when, in fact—as the example of the 1950s suggests—they might be the basis for dismissing those claims, indeed for deeming the MAGA movement the equivalent of the Communist Party in the 1950s. Why, we might ask, has that not occurred?
It’s hard not to conclude that differential applications of the First Amendment have a lot to do with the politics of those invoking it. Lately, it’s the Right that benefits most from absolutist interpretations, while the Left continues to be subject to “clear and present danger” arguments against that interpretation. The current Israel-Gaza War is the most recent example. An anti-Palestinian furor has overtaken politicians, the media, and some university donors and administrators—all of them rushing to condemn and cancel events about Palestine that have nothing directly to do with the war, as well as protests against Israel’s violent overreaction to the violent Hamas attacks. Even calls for a cease-fire are met with demands that such calls should themselves be declared illegal. Free speech must be denied, partisans of Israel declare, because criticism of the Israeli state amounts to antisemitism. This conflation fails to recognize the distinction between antisemitism (a racist outlook) and anti-Zionism (a political critique). Their demands echo the US Department of State’s 2016 “working definition of antisemitism,” which includes examples such as this one: “Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.” The free speech absolutism the Right uses to deny accountability for its attacks on democracy does not apply to criticism of the Israeli state.
It’s a tribute to Steve Batterson’s book that we can raise these questions about the politics of jurisprudence and the vagaries and contingencies of the law. His detailed inquiry in The Prosecution of Professor Chandler Davis provides the historical insight that I associate with the best accounts of this kind: motives are complex, power a critical variable, timing an unpredictable factor, and rational argument not necessarily a winning strategy. This is a case study with resonance well beyond the specificities of the case. It is an important and worthwhile read.
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