Thomas Emerson is best known today in the legal academy as perhaps the foremost scholar of the First Amendment of his generation. Yet this self-described “legal liberal” and “general socialist” has a much more significant and often neglected legacy: his refusal to be silenced by the forces of repression during the Second Red Scare. At a time when the academy was being ruthlessly purged of those who felt and believed as he did – with Yale president Charles Seymour himself declaring that “there will be no witch-hunts at Yale because there will be no witches” – Emerson refused to be intimidated. Instead, he used his legal scholarship and courtroom acumen to fight for desegregation, academic freedom, and the civil liberties of those targeted for their political beliefs.
Emerson’s life, I argue in this brief post, provides valuable lessons about how to navigate the treacherous waters of political persecution and rising authoritarianism. As his experience shows, this is not a moment to keep a low profile and hope for the best; rather, we must learn to work in solidarity with others, build our collective capacity, and go on the counterattack against those who seek to undermine the freedom of belief, association, and expression.
“Tommy the Commie”
Emerson, a childhood polio survivor, grew up middle-class in suburban New Jersey and attended Yale College on a Latin scholarship before matriculating at Yale Law School in 1928. While enrolled, the stock market crashed, industrial production in the United States declined 47 percent, and real GDP fell 30 percent. The year he graduated, unemployment in New Haven ran at about 20%, and 18,000 city families had no full-time wage earner. It was against this backdrop that Realist scholar Lee Tulin helped shock Emerson out of his “fuzzy complacent thinking.” In the dining hall, Tulin’s wife Justine Wise introduced quiet Tom to the movement for industrial democracy, and to her best friend Bertha, an economist and salt in the Passaic textile mills, whom he would eventually marry.
After graduating from law school, Emerson chose to work for the small firm of New York civil liberties attorney Walter H. Pollock. He also involved himself with a group of radical lawyers, gathered around Carol Weiss King, that formed the nucleus of the United States branch of the International Juridical Association (IJA). Emerson and other IJA lawyers practiced law in service of the surging contemporary movements for radical social change, while also publishing and distributing a radical law digest of major cases from across the country in the areas of labor, immigration, and civil rights. His Yale connections helped him secure important New Deal posts, including at the newly-formed NLRB, and his political beliefs led him to join the founding generation of the National Lawyers Guild, an organization he described as “born in revolt—a revolt that embraced the entire intellectual life of the time.”
Emerson and his family thrived in Roosevelt’s Washington. But as Washington shifted rightward following President Roosevelt’s death, Emerson stepped out of a dim national political horizon and returned to Yale to teach law. When Emerson arrived, Yale Law School was already publicly associated with the New Deal and left politics. According to historian Laura Kalman, as early as 1939, the Chicago Tribune “published a cartoon of a Yale Law professor hoisting the hammer and sickle of the Soviet Union in front of the school.” Kalman recounts that Emerson’s hire was bitterly opposed by Yale corporation member and U.S. Senator Robert A. Taft, who enlisted national radio broadcaster Fulton Lewis to warn America against the hiring of this “young ultra-liberal attorney” who partook in an “orgy of social sadism” while an attorney at the National Labor Relations Board.
Not surprisingly, Emerson had been investigated repeatedly throughout the years: by the Smith committee, by HUAC, and by the FBI. He went from committee room to committee room, defending himself and others in his sober, quiet style, from accusations of submerged but dangerous radical proclivities, or outright membership in the Communist Party. Review of his five-decades long FBI file, which Lee Tulin’s son described as “like a Victorian house, so large and ugly that it was attractive,” reveals that government agencies broke into his home in Washington, and also broke into his office at Yale Law School, where agents copied an early draft of his bombshell 1948 critique of loyalty oaths, “Loyalty Among Government Employees,” and returned it to Director Hoover to inform a preemptive public response.
For Emerson, this kind of treatment was not uncommon. During his first decade in academia, he was publicly pilloried by red-hunting journalists, falsely accused of being a Party member by professional ex-Communists, and denounced to the FBI by an anonymous Yale Law School colleague as “the most important Communist intellectual in the United States” during a periodic review of whether he should be immediately detained in the event of hot war with the Soviet Union. These experiences led law students to nickname him, in a somewhat passive-aggressive show of bonhomie, “Tommy the Commie.” Yet not everyone found him so radical: some students at Yale, apparently intrigued by the prospect of academic indoctrination, subsequently reported disappointment that Emerson’s classroom style was gentle and traditional. In fact, those reports dissolved Robert Taft’s resolve to sack Emerson.
Despite this ongoing harassment, Emerson maintained an active legal practice during this period, in which he championed prominent and unpopular causes. Thurgood Marshall, another NLG member, asked Emerson to write the “Professor’s Brief” in Sweatt v. Painter, the landmark higher education desegregation case, and Emerson represented economist Paul Sweezy in his landmark academic freedom case before the Supreme Court. Emerson also joined his student Catherine Roraback in the representation of “second-string” Connecticut Communists, including Al Marder, who described his own trial as “a trial of books, not of law”:
If you sat there, all the witnesses were talking about what Karl Marx said, or what Lenin said, or what Stalin said, not what the defendants said… I felt sorry for the jury to have to listen for seven months to these paid FBI witnesses talking about how they went to a class, and they heard about revolution, and long passages from the works of Marx and Lenin and Stalin. If you’ve ever read the works of Marx or Lenin or Stalin you’d know why I felt sorry for the jurors.
Those, like Emerson, who dared to defend Communists in court or work with them in the context of the Progressive Party, were pilloried, with liberal lion Arthur Schlesinger Jr. calling Emerson a “Typhoid Mary of the left, bearing the germs of [Communist] infection, even if not suffering obviously from the disease.” This tense environment took a toll on Emerson’s family. His stressed-out son Lee, snooping one morning in Emerson’s wallet, mistakenly believed he had found proof that his dad really was a Communist, in the form of an organizational membership card marked “N.A.A.C.P.”
Working in Solidarity
Emerson’s responses to the pressures of the Second Red Scare contain some potential lessons, although certainly no perfect roadmap, for scholars and activists in today’s repressive climate.
First, he tended not to do things alone and was enthusiastic to organize and be organized. During this time, he helped organize the first New Haven chapter of the ACLU, was a leader (and gubernatorial candidate) in the Progressive Party, served a term as national President of the National Lawyers Guild, and was an involved supporter of labor organizing on campus and in New Haven. These activities kept him in community, and in movement.
Second, despite his genial disposition, he was skillful in counterattack. When the FBI came after the Guild, he criticized the FBI; when HUAC went after the left, he denounced HUAC, and when police attacked concertgoers at Peekskill, he condemned the police response. These countermoves provided him a sense of direction, and power, in a demobilizing atmosphere.
Third, he had an academic response to the injustice. He leaned into his experiences by beginning to write on civil liberties and academic freedom, which led him in 1952 to co-author, with David Haber, the first civil liberties casebook, “Political and Civil Rights in the United States,” and eventually become a leading scholar of the First Amendment. He had intended to be an administrative law scholar, but chose to study and defend individual rights, which, based on his own life experience, was crucial work.
Fourth, he developed strong working relationships with students, who provided him direction and guidance in his thinking. His lifelong relationship with Catherine Roraback, who was his student, mentee, and then colleague, was emblematic of this, and reflected his comfort working through problems with others, rather than alone.
Working in solidarity with others created the platform for Emerson to speak up, critique power, and develop his own career alongside those of his students, even in repressive circumstances. We see today a renewed recognition of the power of organizing in the resurgence of the AAUP, and other campus, community, and labor organizations. In this moment, we must acknowledge the importance of protecting individuals from attacks based on belief, association, and expression, so that we may protect our ability to discern the truth, share the truth, and speak truth to power. We are not the first to live in a moment where there is a need to simultaneously build collective capacity and fortify individual rights, and we can use experiences like those of Thomas Emerson to help us along our way.
