Commentary: Taking the 'Red Scare' off the law books


Last week's hearing on Washington state House Bill 2251 didn't take long, a few minutes to explain that it was a simple bill to repeal a law ruled unconstitutional nearly four decades ago.

"I think it devalues our criminal code to have laws on the books that aren’t enforced and are unconstitutional," state Rep. Joe Fitzgibbon, D-Burien, told the House Judiciary Committee before it quickly moved on to the other bills.

But you don’t have to read past the bill's title to know this isn't just any other law.

"An act relating to subversive activities."

Such a title summons up other phrases from mid-20th century history. Red Scare. Cold War. Loyalty oaths. Un-American activities committees. Communism. And in Washington state, you have to throw in a name as well – Albert Canwell.

“What are you here for?” I asked longtime (Spokane) Spokesman-Review reporter Jim Camden at the hearing. After pointing to HB 2251, Camden said he thinks he was the last reporter to interview Canwell before he died in 2002. When Camden visited the then-91-year-old Canwell at his home on the Little Spokane River, Camden found an unrepentant Red hunter who still maintained files on people and organizations he thought disloyal.

“I didn’t accuse anybody who wasn’t guilty as hell,” Canwell told him.

That is debatable. What isn’t is Canwell’s place in American history. As a freshman lawmaker elected during the Republican postwar sweep of 1946, Canwell persuaded the Legislature to create a “Joint Fact-Finding Committee on Un-American Activities in Washington State” and make him chairman.

It was hearings on suspected communists at the University of Washington in 1947 – the so-called Canwell Committee hearings – that made him a national figure. Three professors were eventually fired. Another, Melvin Rader, fought back. A Pulitzer Prize-winning investigation by then-Seattle Times reporter Ed Guthman discovered that evidence supporting the professor’s alibi was known by the committee but kept secret.

The hearings themselves trampled civil liberties – no right to see evidence, no right to face accusers, limited right to counsel, lives ruined without charges or proof. Canwell’s final report was so riddled with unsubstantiated accusations that the Legislature ordered it sealed in a safe. According to Don Brazier’s history of the Legislature, the safe could be opened only by the use of two keys simultaneously – one held by the House speaker and the other by the Senate president pro tem.

Technically, Canwell had nothing to do with the law Fitzgibbon seeks to repeal because he was gone by then and Democrats had regained control of the Legislature. In reality, though, Canwell had everything to do with it. Requiring all state employees to take loyalty oaths and confess any past association with “subversive organizations” was the natural result of the Canwell Committee.

His tactics predated the more notorious career of U.S. Sen. Joe McCarthy. Canwell claimed to have mentored the Wisconsin senator whose use of guilt by association and innuendo gave birth to “McCarthyism.”

Before the 1951 act could have much effect, it was challenged by a group of UW professors, including Rader. In 1964, the U.S. Supreme Court invalidated the law as unconstitutionally vague.

“Measures which purport to define disloyalty must allow public servants to know what is and is not disloyal,” wrote Justice Byron White for a 7-2 majority in Baggett v. Bullitt. “The challenged oath is not open to one or a few interpretations, but to an indefinite number.”

Still, the statute has remained in the criminal code ever since, ironically right after “Privacy, Violating Right Of.” It is an artifact of a time when fear led too many Americans to sacrifice individual freedoms for collective security. It shouldn’t be removed as a form of housekeeping, but to cleanse an embarrassment, to remember how both parties can run over the Bill of Rights.

“There are lots of laws still on the books that aren’t enforced, but this one has a special history because it is so clearly unconstitutional,” Fitzgibbon said.

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