The Atlantic Magazine has an interesting article out this week on a little known effort by the Administration to stop Americans from listening to a speech in Mexico by Leon Trotsky that would be transmitted over a telephone line. Assistant Solicitor General Golden W. Bell wrote the memo below stating that the Administration had no such authority. That was before the Office of Legal Counsel and the rest of the Department became more ambitious and less principled. Today they can find interpretations to allow the circumvention of the separation of powers, the assassination of citizens, the establishment of a torture program, and the maintenance of an Imperial Presidency.
The OLC opinion of Bell tells the White House what it does not want to hear. Bell states that the Federal Communications Commission cannot censor the transmission to New York.
Today, Bell’s reference to the “abuse of free speech” and the power of Congress to censor such material is troubling. However, one has to consider that this is before some of the seminal free speech cases. The Court had previously upheld the criminal speech conviction in Gitlow v. New York (1925) and before that upheld convictions under the Sedition Act in Abrams v. United States (1919). It also upheld the conviction in Schenck v. United States of Socialist Party official Charles Schenck under the 1917 Espionage Act. Thus, the Supreme Court was itself endorsing a highly abusive interpretation of the first amendment.
Ultimately, Trotsky himself would be disconnected by order of Joseph Stalin. Stalin ordered the former comrade of Lenin to be killed. After unsuccessful attempts, he succeeded on August 20, 1940 — just three years after the OLC memo. Undercover NKVD agent Ramón Mercader killed Trotsky with a blow to head with an ice pick or axe. After lingering for a day, he died at the age of 60 with the final words “I will not survive this attack. Stalin has finally accomplished the task he attempted unsuccessfully before.”
Here is the memo:
Censorship of Transmission of Trotzky Speech From Mexico
The Federal Communications Commission does not have statutory authority to censor the telephone transmission from Mexico into the United States of a speech by Leon Trotzky.
February 8, 1937
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
Reference is made to your request of this date that I investigate the possible statutes relative to the proposed speech to be made tomorrow night in Mexico by Leon Trotzky and transmitted from that place to New York City by telephone. There do not seem to be any statutes applicable to the situation. Sections 137 and 155 of title 8, U.S. Code, relate to certain seditious utterances, but these sections apply only to aliens. They provide for the exclusion of aliens known to entertain certain views on political questions and for the arrest and deportation of aliens who utter seditious statements after admission. They also provide for fine or imprisonment of such aliens if, after such arrest and deportation or after exclusion, they again attempt to enter the United States.
The Federal Communications Act gives no authority to the Federal Communications Commission to censor telephone communications. Section 326 of that Act, which relates to censorship of radio communications, is significant. That section reads:
Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication. No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication.
47 U.S.C. §326. Section 33 of title 50, U.S. Code, makes it unlawful willfully to cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States, or to obstruct the recruiting or enlistment service of the United States to the injury of the service of the United States, and section 34 of said title makes a conspiracy to violate the provisions of section 33 unlawful; but these sections apply only when the United States is at war.
The nearest approach to the subject of any statute that I have been able to find is that of section 4 of title 18, U.S. Code, which provides:
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be imprisoned not more than ten years or fined not more than $10,000, or both….
If this section is applicable, those who assist in the transmission and delivery of the speech in New York City would probably be guilty of violating it. I am of the opinion, however, that it is not applicable to the present situation, as it is not probable that the speech will incite to rebellion or insurrection.
There would seem to be a field here in which the privilege of free speech may be abused, but apparently there is no present statute prohibiting such abuse. Until such time as Congress shall see fit to enact legislation on the subject, it would seem that the only remedy available is through diplomatic relations with the country from which the abuse emanates.
GOLDEN W. BELL
Assistant Solicitor General
12 thoughts on “DOJ Memo Reveals Effort To Block Trotsky Speech”
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Ross S.Heckman @ 8:01: Well played, sir!
This is like one of Merv Griffin’s old “theme shows.” Today it’s Russia.
The citizenry are no longer vigilant, nor educated in the history of excesses of power, nor educated in different systems of thinking. Those in power know it and exploit the political apathy (or the active voter suppresion of some) present in the everyday American.
How else can you explain Sarah Palin, Wall Street thieves, the “One Percent”, misplaced religious devotion to the 2nd Amendment and endless war on other peoples (and women).
But we are the pivots…..
Senator Schumer is no stranger to hyperbole.
“Russia has stabbed us in the back, and each day that Mr. Snowden is allowed to roam free is another twist of the knife,” he said in a statement. “Others who have practiced civil disobedience in the past have stood up and faced the charges because they strongly believed in what they were doing. Mr. Snowden is a coward who has chosen to run. Given Russia’s decision today, the President should recommend moving the G-20 summit.”
This type of engineered bullcrap makes me long for the good old days of nuclear war engineered bullcrap.
The acorn of spying on everybody Snowden planted, has grown to a HUGE OAK TREE. The powerful Washington elites and benefactors are doing everything in their power to distract and disguise this very real threat to our constitutional rights.
Look instead to this mustard seed named Snowden.
Privacy is insignificant if you’re a good citizen.
Wrap yourself in the flag, totalitarianism in Democracy is Patriotic.
We have faced the enemy and we have become them.
There is a valid argument the limitations of federal power still adhered to in the pre-WWII era played the principal role in being, in this matter, “principled”. The Assistant Solicitor General likely attended law school in the early 1900’s, and was schooled in the fed gov’t having limited powers. Even if an FDR-era appointment, the idea of the Feds (outside of times of war) doing whatever they wanted would likely have been anathema. But, then again, the idea of Communism raising a spectre evil enough to justify speaking of an, “abuse of free speech”, also existed.
It’s golly-gee great the legal philosophies of Mr. Bell and others would look askance at the Feds stepping in to cut off a Trotsky speech. But, consider how this same restraint on the use of federal power would have played out in the Civil Rights era. For example, Eisenhower was willing to do certain things to enforce Brown v. Bd. of Education, etc., but would he ever have been willing to go as far as LBJ, or even Nixon? I can’t see serious believers of limitations on Fed power using the full power of the Fed gov’t to end Segregation, etc.
“Leave no authority existing not responsible to the people.” – Thomas Jefferson
What a difference, when powerful people in this country still felt some constraint from the rule of law.
By the way, how is what Stalin did to Trotsky different from what Pres. Obama claims the authority to do? Maybe, after giving Trotsky all the process that Stalin thought was due, Stalin determined that Trotsky was giving material aid to terrorists and was an enemy combatant, based on state secrets that no one else is privileged to know.
DOJ….. Department of ”Jerk-Offs”………..
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