A Martyr for Free Speech

Historian Paul Finkelman praises Brad Snyder’s new account of a wrongfully convicted civil rights hero.

By Paul FinkelmanDecember 7, 2025

• Law

• History

EVERY ONCE IN a while, a scholar works for years on a book, and then, through pure serendipity, the book comes out at a moment when its importance to culture, society, and politics far exceeds the hopes and expectations of the author or the press. Brad Snyder has been thinking about his new book You Can’t Kill a Man Because of the Books He Reads: Angelo Herndon’s Fight for Free Speech for more than two decades, and I suspect he has been gathering information, notes, and investigative leads all that time. This is not the kind of book one writes quickly. The research is hard, the sources are scattered, and tracking down odds and ends is time consuming.

This is not just a very fine scholarly study of a single man and his Supreme Court victory. At a time when the Justice Department and the current resident of the White House seem intent on making war on free speech, Snyder reminds us of the central importance of what Michael Kent Curtis called, in his book on freedom of expression a quarter century ago, “The People’s Darling Privilege.” Thus, this is not just a good book; it is also an important one.

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On June 30, 1932, Angelo Herndon led about 150 unemployed people in Atlanta to protest the decision of the Fulton County commissioners to cut relief payments to 22,000 unemployed workers and their families who, according to The Atlanta Constitution, were “without bread, many without shelter, ragged and ill.” The Constitution, which was hardly socially progressive, showed some sympathy to the unemployed and their families, declaring that “hunger and misery” were widespread in “the capital city of Georgia.” The march was peaceful, with no speeches made and no property damaged; as Snyder describes the scene, “the police stood nearby and talked amiably with the protesters.” A day later, the County Commission “discovered” an extra $6,000 in its budget for destitute families. It was a minor victory, and Herndon vowed that there would be future marches and demands for greater support for those who were hungry and without work.

Atlanta police officers arrested Herndon 11 days later, beat him with flashlights, and handcuffed him to a chair with wires attached to it, telling him he would be electrocuted if he did not “confess” to his crimes. After threatening to kill him, they held him incommunicado for 11 days. When finally brought into court, he was charged with a capital crime—attempting to incite an insurrection to overthrow the government of Georgia. His arrest was based on a Reconstruction-era act, updated after the Civil War from an antebellum law designed to suppress slave insurrections.

Herndon’s “crime” was not the peaceful march. Rather, Herndon faced a Georgia electric chair because he was a Black man and a member of the Communist Party, and because the march he had organized was racially integrated. This was truly a trifecta for the white supremacist establishment of deeply segregated Georgia. Not surprisingly, an all-white grand jury indicted him, and an all-white petit jury found him guilty after deliberating for two hours. It took this long to reach a verdict because a majority of the jurors recommended he be sentenced to the Georgia chain gang, while a few initially held out for a death sentence. The judge, in a pathetic attempt to appear lenient, or even “fair,” accepted the jury’s recommendation, and sentenced him to the chain gang for 18 to 20 years. This was simply a slow death sentence, since almost no one ever survived more than 10 years on the chain gang.

At the trial, and later on appeal, attorneys for Georgia conceded that the small march was not an immediate threat to the state—after all, they could hardly have argued otherwise, given that there was no violence and no property damage. There wasn’t even a speech. Rather, the prosecutors asserted that Herndon’s membership in the Communist Party and his possession of various communist tracts proved his intent to overthrow the government of Georgia and destroy white society, by arguing for an end to segregation and the establishment of Black majority states in the Deep South. The prosecution, the US Supreme Court noted,

especially relies upon a booklet entitled “The Communist Position on the Negro Question,” on the cover of which appears a map of the United States having a dark belt across certain Southern states and the phrase “Self-Determination for the Black Belt.” The booklet affirms that the source of the Communist slogan “Right of Self-Determination of the Negroes in the Black Belt” is a resolution of the Communist International on the Negro question in the United States adopted in 1930, which states that the Communist Party in the United States has been actively attempting to win increasing sympathy among the negro population, that certain things have been advocated for the benefit of the Negroes in the Northern states, but that in the Southern portion of the United States the Communist slogan must be “The Right of Self-Determination of the Negroes in the Black Belt.”

This was indeed a slogan of the American Communist Party in the early 1930s. The slogan illustrates the utter stupidity of the American Communist Party in parroting weird theories and policies developed in Moscow that made no sense in the context of US history, law, or politics. It did, however, infuriate the South’s racist establishment and make any communist organizer, especially a young Black one, an easy target for the police and prosecutors. Herndon, an 18-year-old son of Alabama sharecroppers with a sixth-grade education, embraced this and other communist positions. The party sent him to Atlanta to recruit members, where he was an easy and convenient target for arrest. If I have any complaint about Snyder’s book, it is that he failed to truly examine the way the white leaders of the Communist Party USA exploited Herndon, in effect setting him up to be a martyr for their cause and nearly getting him killed.

The CPUSA could have found competent attorneys to take Herndon’s case and make a strong First Amendment argument that Herndon had a right to own communist literature, that his march had not created any dangers (much less a “clear and present danger” to the state of Georgia), and that, under recent Supreme Court precedents, he was innocent of any crime. But the party wanted a political trial that would stress class conflict, attack all-white juries, and focus on the injustice of segregation. The party had little or no interest in such bourgeois and capitalist concepts as freedom of speech. Herndon was represented by Benjamin J. Davis Jr., the son of a powerful and well-off Black leader in Atlanta. Davis was a young and very inexperienced alumnus of Harvard Law School, where he was an “indifferent law student” who took four years to graduate (in contrast to his law school roommate, William Hastie, who was the second Black man to serve on the Harvard Law Review and would later become the nation’s first Black federal judge.)

When he took Herndon as a client, Davis had never tried a criminal case. As Snyder deftly points out, rather than any legal successes, Davis was famous in the Black community for being a superb tennis player and for his sartorial presentation with “tailored suits, studs on his shirts, a gold clasp under his collars, and spats over his patent-leather shoes,” as well as for his “finely manicured mustache and fingernails” and “sweet-smelling cologne.” Davis, following CP ideology, put most of his energy into a fruitless attack on the jury pool and its lack of Black members. He also had a tendency to arrogantly and unwisely address the judge, who eventually cited him for contempt. But the CP was happy to challenge racism and segregation with a Black attorney who would follow the party line.

After the trial, Herndon published an elegantly written autobiography, Let Me Live (1937), which followed the party line on many issues. As Snyder shows, Herndon altered much of the story of his life to hide where he came from and where his family still lived. It was a minor bestseller and helped the Communist Party publicize his case without doing much to help him. They did not want to harm Herndon, but they were far more concerned about the success of the party than about Herndon’s safety.

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Davis’s defense of Herndon was incompetent, and his failure to properly raise a First and Fourteenth Amendment claim proved extremely costly. Davis’s most important contribution to the case may have been one sentence in his argument to the jury (and the title of the book under review): “You can’t kill a man because of the books he reads.” His deplorable handling of the case, however, combined with the meddling of CP leaders, certainly made it easier for the jury to convict Herndon, and for the Georgia Supreme Court to uphold the conviction. Worse than his incompetence at trial, Davis failed to raise a First Amendment claim when he appealed the conviction to the Georgia Supreme Court, undermining a later appeal to the US Supreme Court.

Because Davis failed to raise the constitutional issues at the state level, the Supreme Court ruled in a six-to-three decision that no federal question was properly before the court. The three most liberal justices—Louis Brandeis, Harlan Fiske Stone, and Benjamin Cardozo—all sided with Herndon, in part because the free speech aspect of the case was so compelling. The four troglodyte reactionaries—known as the “Four Horsemen,” in reference to the biblical harbingers of the Apocalypse—predictably rejected the appeal and would later vote to uphold Herndon’s conviction. The court’s two moderates, Charles Evans Hughes and Owen Roberts, voted against Herndon because they, too, believed that Herndon’s lawyers had failed to properly raise the constitutional argument at the state level.

Thus, Herndon returned to the notorious Fulton County jail for another few months. By the time Herndon’s legal ordeal was over, he would have spent about two years there, often in solitary confinement, sometimes being fed nearly inedible food, and receiving inadequate medical care. Had the Communist Party spent more time and resources on a proper legal defense, he might have suffered less, but ideology proved more important than the fate of one young man. Throughout these years, especially while he languished in jail, the CP campaigned for his freedom, raising funds, recruiting members, and getting great publicity. The party was successful in making Herndon’s cause a national issue. For example, The New York Times was one of many national papers to give front-page coverage to his first conviction.

For the appeal to the Supreme Court, the CP allowed real lawyers who knew what they were doing to take over the case. The party also stopped trying to infuse the defense with communist theory and ideology. In the end, Herndon would “live,” saved by Whitney North Seymour Sr., a Wall Street lawyer who had been an assistant solicitor general under Herbert Hoover; two conservative Columbia Law School professors, Herbert Wechsler and Walter Gellhorn; and the labor activist and feminist Carol Weiss King, who was sympathetic to radical causes but practiced law like a lawyer. Handicapped by Davis’s incompetence and the strategy of the CP early in the case, they lost his first appeal; however, they did not quit.

The team went back to Georgia to file a habeas corpus petition in a local court, raising the proper constitutional issues. They were joined by two excellent local attorneys: William Sutherland, a native Georgian who had clerked for Justice Louis Brandeis, and Sutherland’s brother-in-law Elbert Tuttle, who was raised in California and Hawaii and would end his career as a judge on the US Court of Appeals for the Fifth Circuit. Sutherland had little interest in civil rights or Black equality, and no interest in radicalism, but he did believe in free speech. Tuttle, who also supported free speech, started out as a moderate on civil rights but later became a hero of integration from his judicial appointment in 1954 until his death as a senior judge in 1996.

Sutherland and Tuttle guided the case in Georgia, bringing their habeas petition to a sympathetic judge, Hugh Dorsey, who agreed with their First Amendment claims. Two decades earlier, Dorsey had prosecuted Leo Frank for a murder he had not committed, stressing that Frank was a Jew and an outsider. Frank was ultimately lynched after his conviction. Sutherland and Tuttle believed (correctly, it would seem) that Dorsey was a changed man. After Dorsey’s decision, Herndon remained free on bail. But by this time, his health was damaged from two years in jail. He moved to New York and gave talks about his case and the Communist Party throughout the country. After Dorsey released Herndon, the Georgia Supreme Court once again affirmed his conviction, denying that the Georgia law violated the First Amendment. This set the stage for the Herndon case’s second trip to the Supreme Court, where his conviction would be overturned.

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Snyder details Herndon’s legal odyssey with great insight. He does not make the point directly but provides the evidence that good lawyering matters. I often meet people who think judges, especially on the Supreme Court, are swayed not by argument and law but only by their own political prejudices. This may be true for a couple of current justices, but Snyder shows that superb lawyering, hard work, and a clear strategy can save a client, in this case a young man who faced almost certain death if he were sent to the Georgia chain gang. Two years after their first ruling against him, Hughes and Roberts joined the dissenters, and Herndon finally won his freedom.

In 1935, Justice Owen Roberts voted with the majority because he agreed that the constitutional issues were not properly raised before the court. Less than two years later, he wrote the opinion overturning Herndon’s conviction. Many commentators have argued that Roberts changed his vote here, and in other cases, because of President Franklin D. Roosevelt’s proposal to add up to six more justices to the court, in what is known as his “court-packing plan.” Commentators called this then—and now—the “switch in time that saved nine.” Because Roberts and Hughes had switched their votes on a couple of issues, New Deal programs were suddenly saved and the court-packing plan died. Snyder points out, correctly, that both Hughes and Roberts had begun to change their jurisprudence before FDR announced his plan, voting in conference to uphold progressive economic legislation and support free speech. But there is always a lag between votes in conference and the actual writing and announcement of decisions, so commentators invented the cute, but incorrect, slogan.

None of this is new to most constitutional historians, who have been pointing this out for years. The value of Snyder’s book is that he (and his publisher) hope to reach beyond academics and teach pundits, laggard scholars, lawyers, and political pontificators that there was no “switch in time.” Rather, there was better lawyering, more carefully drawn statutes, and the realization among some members of the court that, as John Marshall said in 1819, the Constitution was “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” Thus, jurisprudence changed to face the greatest crisis in the United States since the Civil War—the Great Depression—and the need to face the fact that, as FDR noted in his second inaugural address, “one-third of a nation [was] ill-housed, ill-clad, ill-nourished.”

In the end, the US Supreme Court set Herndon free.

The rest of Herndon’s life was both exhilarating and tragic. He was briefly a rising literary figure, working with leading Black intellectuals including Ralph Ellison, Langston Hughes, and Richard Wright. He stayed with the Communist Party for a while, but his disillusionment grew. He would eventually leave the party because he believed racial equality was more important than communism. It is also likely that he grew tired of being told to follow the party line and to change his mind when the party changed its policies. He started a publishing company and then turned to operating different businesses.

The one-time communist became an entrepreneur with sketchy ethics. In 1954, he was convicted of real estate fraud for taking multiple payments from different people for the same property. He spent four years in prison. He spoke at a few communist-sponsored events in the 1950s and ’60s, but he was erratic and undependable. My sense is, although Snyder does not suggest this, that he was suffering from PTSD from two horrible years in the Fulton County jail as a teenager, from the stresses of being in the CP (where others told him what to say and think), and from his failed publishing and writing ventures. And then he went to the Cook County jail and Joliet State Prison for real estate fraud. His final public appearance was in 1969 to honor Ben Davis, who had died in 1964. Herndon then simply faded away. In 1972, even the FBI, which had started following him in the 1930s, “lost track of him” and eventually gave up worrying. He later moved to Arkansas, where he died in 1997, at age 83, with no known obituaries and no one noticing who he was or had once been.

Snyder’s book is engagingly written and superbly researched. At one level, it is a deeply sad story of an idealistic teenager, caught up in politics and social action that nearly killed him but which brought him fame (though not fortune) and left him wounded. At another level, it is a deep dive into a Supreme Court case that was central to the creation of modern free speech law and an important victory for civil rights.

There are heroes here. Herndon was heroic in his idealism and his focus on fighting racism, even though he later ended up exploiting others in his corrupt business ventures. The lawyers from Atlanta and New York City who won his case worked countless hours pro bono, tirelessly cleaning up the mess Ben Davis left them, and relentlessly pursuing freedom of expression and at least a measure of racial equality. Judge Dorsey, who wrongly sent Leo Frank to prison and set the stage for his lynching, courageously stood up to local prejudice, racism, and bigotry to initially set Herndon free.

There are also clear villains, starting with the prosecutors and the judge in Atlanta at Herndon’s first trial, who persecuted a teenager to preserve white supremacy, racism, and their own political careers. And, as in any tragedy, there are the fools: the dandy Ben Davis who wasted his time in law school and nearly wasted the life of his client, and the leaders of the Communist Party, who were more interested in a martyr and their “cause” than the welfare of a teenager they claimed to be protecting. And there is much to be said for a Supreme Court that preserved liberty and freedom of speech despite the communist ideology they doubtless hated.

Lawyers, historians, and citizens should read this book. Someone should also, perhaps, send copies of it to the justices on the Supreme Court and our current attorney general and her staff.