In The Rise and Fall of Morris Ernst, Free Speech Renegade, Samantha Barbas answers those questions in a fascinating and thoroughly researched biography of an important 20th-century figure whose tragic flaws denied him a place of honor in the roster of great civil liberties lawyers despite his remarkable accomplishments.
When he died at the age of 87 in 1976, The New York Times devoted a lengthy obituary to his momentous life, describing him as a “witty, tweedy, bow-tied man whose friends included judges and jockeys, bankers and barristers, Presidents and precinct politicians.” The Times applauded him for lifting the ban on James Joyce’s masterpiece Ulysses and for his other book censorship victories; for winning a landmark Supreme Court case protecting the right to protest in public forums; and for his wide circle of friendships, including President Franklin D. Roosevelt and Justice Louis Brandeis. Other newspapers hailed him as the “country’s greatest guardian of civil liberties” and the “dean of the liberal American bar.”
But the adulation didn’t last. A year later, in 1977, a Freedom of Information Act request filed by the ACLU brought to light 45,000 pages of FBI files, revealing Ernst’s enthusiastic complicity with Hoover. The ACLU provided the documents to a New York Times journalist, Anthony Marro, who published a front-page story that described how Ernst “alerted the FBI to the anti-FBI sentiment of some union members and to plans of some ACLU members to attack the Bureau.” Other newspapers reported how Ernst aided the FBI in surveillance of the ACLU and “secretly established a personal relationship with FBI Director Hoover.” The ACLU convened its own special commission, and Aryeh Neier, the then-executive director of the ACLU, called Ernst’s conduct “indefensible.”
A 1984 article in The Nation written by Harrison Salisbury, a former Times journalist whom Ernst had considered a friend and confidant, illuminated the clandestine Ernst-Hoover relationship in detail. The Nation promoted the piece as demonstrating how the FBI “manipulated and abused the confidence of a leading civil libertarian and in doing so compromised the ACLU.” But in her biography, Barbas isn’t buying it. Instead, she makes clear that “Ernst was not a victim,” noting that he “instigated the connection with Hoover and used it for his own ends, just as Hoover and his assistants used Ernst for their purposes. Ernst, like Hoover, was fully a coconspirator.”
Barbas’s engrossing and lucid examination of the rise and fall of Morris Ernst comes at an opportune time. Not only is it important to recall the early struggles to defend constitutional rights in the face of censorship, repression, and McCarthyism, but in our current deeply and increasingly polarized society, it is important to explore a cautionary tale of how the intoxicating appeal of being close to power causes some to lose their moral compass.
Born on August 23, 1888, in Uniontown, Alabama, into a Jewish family, Morris Ernst would grow up inquisitive, talkative, and extremely bright, yet timid, awkward, brooding, aloof, and deeply insecure. His family soon moved to the Lower East Side of New York and then to Harlem, which boasted a large population of middle-class Jews. His insecurity, Barbas writes, “would drive much of his life’s efforts — his frenetic, compulsive activity, his relentless search for the spotlight, and his quest to attract the attention and praise of others by being smart, charming, and provocative.”
In 1905, Morris graduated from Horace Mann School, a prestigious private school in Morningside Heights. He went to Williams College in Massachusetts, where he joined the only fraternity that accepted Jews, Alpha Zeta Alpha. He also found his voice on the debate team, worked with two literary societies, was chosen for the editorial board of the school newspaper, and felt comfortable in the school’s civic-minded and intellectual crowds. He graduated in June 1909 with a BA in English, but his distinguished college career was not enough to overcome the reality that most jobs for college graduates were not available to Jews. His family couldn’t afford to send him to graduate school, so Morris went to work in the family shirt business.
A 10-minute chance conversation at a local skating rink with a high school classmate who was working at a bank and going to law school at night changed Morris’s life. He promptly registered at New York Law School, the city’s largest evening law school, and graduated in April 1913. The following year, he was invited by a Williams College classmate to form the law firm of Greenbaum, Wolff & Ernst. The firm would build a very successful practice and provide the base for Morris’s expanding legal career.
Ernst began practicing law in a society that, as Barbas writes, “saw unprecedented violations of the right of free speech” as “the government cracked down so harshly on dissent.” In 1914, a group of prominent progressives, fearing that the impending war would endanger their social reform efforts and democracy itself, formed the American Union Against Militarism. When its director, Crystal Eastman, had to step down due to ill health, a young and charismatic social worker from St. Louis named Roger Baldwin took her place. Within a year, it was the largest peace group in the country, with a branch office in every major city. When policy differences arose, Baldwin split from AUAM to form the National Civil Liberties Bureau. With a staff in New York and 120 cooperating attorneys around the country, the NCLB defended draft resisters, conscientious objectors, and the Industrial Workers of the World, a radical anarchist union, after its offices had been raided and its members imprisoned. Pledging to defend freedom of speech, press, and assembly, liberty of conscience, and freedom from unlawful search and seizure, the NCLB was, according to Barbas, “the first organization in the nation’s history devoted to the defense of civil liberties.”
When he refused to register for the draft, Baldwin was arrested for violating the Selective Service Act, found guilty, and sentenced to prison. After his release in 1920 and a stint as a migrant laborer in the Midwest, he returned to New York and reorganized the NCLB as the American Civil Liberties Union. He put together a national committee that included Harvard Law Professor Felix Frankfurter, Socialist Party leader Norman Thomas, and Elizabeth Gurley Flynn of the IWW. At one of its first protests, staged to test an ordinance that prohibited speaking in public without a permit, an ACLU leader started reading the Declaration of Independence. As he was being arrested, he objected: “I didn’t say that … Thomas Jefferson said it,” the policeman demanded, “Where’s that guy? We’ll get him too.”
In 1921, Baldwin asked Ernst for some legal advice. This fact — and this date — is important because later in life Ernst boasted that he was a founder of the ACLU. Barbas makes it very clear that he was not.
In 1923, as the friendship grew, Baldwin asked Ernst to become treasurer (and later a member of the board of directors) of the Garland Fund, established by a wealthy, idealistic young man who devoted his inheritance to assisting “pioneer” enterprises “directed to social and economic freedom.” The Fund made grants and loans to the ACLU, the NAACP, the United Mine Workers, and the Sacco-Vanzetti defense, as well as a number of communist-dominated enterprises such as the International Labor Defense, the League for Peace and Democracy, and the Daily Worker and the New Masses. As treasurer, Ernst signed checks approving payments to communist groups, a fact that would come back to haunt him years later.
Ernst began representing the ACLU and its clients in a wide array of cases, bringing “his tenacity, zeal, and showman’s ability” to his work, as Barbas puts it. His association with the ACLU exposed him to important free speech issues as the ACLU supported such famous cases as the Scopes “monkey trial” and Supreme Court cases representing communist leaders Benjamin Gitlow and Charlotte Anita Whitney. Soon Baldwin asked him to become the ACLU’s chief counsel, and in August 1926 Baldwin invited him to join the Executive Committee. Ernst called the meetings a “joy and an education,” and he readily served without pay.
In 1926, the New York City Board of Education passed a regulation that permitted speakers to use school buildings for evening meetings only if they discussed “subjects that will tend toward active support of American ideals.” The ACLU was denied a permit to hold a meeting on the subject of “Old Fashioned Free Speech” featuring Fiorello La Guardia, John Dewey, and James Weldon Johnson.
At the ACLU’s request, the New York Supreme Court ordered the Board of Education to review the case at a public hearing. The Board demanded that the ACLU recant its recent pamphlet What Do You Mean — Free Speech?, which quoted Jefferson asserting the right to revolution. Ernst defended the pamphlet because “that is practically what Jefferson said.” The chairman of the Board shot back: “We can’t stand for what Jefferson said in the public schools these days.” It would take over two years, but in 1928 the permit was granted. The victory was emblematic of how Ernst and the ACLU advanced its mission through high-profile litigation. “By keeping the case in headlines,” Barbas writes, “the ACLU got greater publicity than anything its members might have said at their ill-fated meeting.”
In 1928, Ernst, along with 200 other prominent figures on the left, including Jane Addams, Clarence Darrow, and Felix Frankfurter, appeared on the “blacklist” of “subversives” published by the Daughters of the American Revolution. To poke fun at the DAR, Ernst help organize “Daughters and Sons of the Blacklist,” which hosted a “Blacklist party” that attracted more than a thousand request for tickets. Ernst was now firmly ensconced among his peers on the left.
In the 1920s, the United States was wracked by a culture war as feminists and their allies sought to eliminate the Victorian notion that women must be chaste and guardians of public morals. Traditionalists reacted by banning contraception, dancing, short skirts, jazz, and “obscene” literature. The law was on their side. In 1873, Congress passed a federal anti-obscenity law, popularly known as the Comstock Act, named after Anthony Comstock, a fervently religious man who dedicated his life to the struggle against sins of the flesh. The law made it a crime to send an “obscene, lewd, or lascivious” book, “pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character” through the mail, including “every article or thing designed or intended for the prevention of conception or procuring of abortion.” Several states passed “little Comstock laws,” including New York Penal Code Section 1141, which criminalized material that was “obscene, lewd, lascivious, filthy, indecent, or disgusting.”
As difficult as it may be for us to understand today, at first the ACLU, in particular Roger Baldwin, didn’t see obscenity laws as a First Amendment issue. As Barbas writes, it was Ernst, with his innovative views on free speech and his modern attitudes toward sex, who “was the first ACLU leader to suggest that literary censorship implicated freedom of speech. […] It became Ernst’s signature cause and his most enduring contribution.”
But it didn’t start well. In 1927, Ernst was angry when he lost his first obscenity case. The Customs Bureau had seized hundreds of copies of the book What Happens from a French steamship. Published in Paris, it was a thinly veiled account of author John Herrmann’s own experiences with the wild sexual behavior among high school and university students in Michigan. Ernst mounted a vigorous defense, but the judge upheld the finding of obscenity and all the imported copies were destroyed.
Ernst channeled his disappointment into writing To the Pure: A Study of Obscenity and the Censor. A landmark work, it was the first book-length, comprehensive analysis of obscenity law in the United States. Because censorship of obscenity involved the suppression of knowledge, Ernst and his co-author argued that it raised a free speech issue. Despite being very well reviewed — the book made The Nation’s list of distinguished publications for 1928 — it only sold 2,786 copies. Nevertheless, according to Barbas, the book established Ernst as the leading legal expert on obscenity. “It brought him, in a sudden and rather remarkable fashion, into a series of historic censorship cases.”
In 1929, Ernst won a significant court ruling removing a ban on The Well of Loneliness by Radclyffe Hall, a British upper-class woman who self-identified as a lesbian and called herself John. Ernst not only vindicated freedom of expression but made it profitable. The book sold more than 100,000 copies, and under his contingency deal with the publisher, Ernst earned 25 cents on each sale, which today would amount to over $380,000.
Next, Ernst won a unanimous groundbreaking decision from the Second Circuit Court of Appeals when it declared that The Sex Side of Life, a sex education pamphlet by Mary Ware Dennett, was not obscene. He took that case without charging a fee.
In response to the Comstock Act connecting censorship with the criminalization of birth control, Ernst expanded his legal practice to combat both. In 1929, under mounting pressure from Catholic authorities, New York City police raided the nation’s first birth control clinic, which Margaret Sanger had opened in Brooklyn in 1916. The district attorney charged two doctors and three nurses with distributing an instrument or medicine “for the prevention of conception.” Ernst represented them at trial. He called five eminent physicians, who testified that under the circumstances, contraception was justified. The state court judge ruled in favor of the clinic, which went on to be booked three weeks in advance. Over the next eight years, the number of birth control clinics in the country went from 55 to 374. Sanger called the court ruling “one of the finest we have ever won.” Ernst was overjoyed.
Barbas reports that by 1930, Ernst had become “the main lawyer for the book industry in censorship cases and a pioneer of literary freedom,” given his “courtroom showmanship, his connections to the press, and his eagerness to be associated with sex and controversy.” That year, he defeated an attempt to suppress Arthur Schnitzler’s novel Casanova’s Homecoming. The judge found that the book did not tend “to impair the morals of anyone reading it.” In 1931, a federal judge in Philadelphia ruled in favor of Married Love, a guide to sexual relations in married life, by Marie Stopes, dubbed the “Margaret Sanger of England.” Despite this ruling, the federal attorney in New York went after the book anyway. The case was heard by a well-known liberal judge, John Woolsey, who agreed with Ernst that taken as a whole, the book was “informative and instructive.” Woolsey explained that “any married folk who read it cannot fail to be benefited by its counsels of perfection and its frank discussion of the frequent difficulties which necessarily arise in the more intimate aspects of married life.” He wryly added that marriage is “a status of antagonistic co-operation.” Soon after, he also found that another book by Stopes, Contraception, was not obscene.
Ernst’s string of successes convinced the ACLU to form the National Council on Freedom from Censorship to defend freedom of expression in the theater, radio, literature, and film. Eminent artists, journalists, critics, and playwrights, including Walter Lippmann, Eugene O’Neill, Lewis Mumford, and H. L. Mencken, were among the early members.
All of Ernst’s efforts set the stage for the most important censorship case of his career, defending James Joyce’s Ulysses, the most notoriously banned book in the United States. In 1918, as Joyce was completing the novel, he sent chapters to be published in the New York–based literary magazine the Little Review. The Post Office Department confiscated every issue and burned them without delay. The New York Society for the Suppression of Vice had obscenity charges brought against the Review’s editors. Attorney John Quinn defended the editors, but a three-judge panel found the material obscene.
No American publisher would risk prosecution. Eventually, Joyce granted worldwide rights to Sylvia Beach, and the novel was published in Paris under the imprint of her avant-garde bookstore, Shakespeare and Company, in 1922. Blue paperbound copies were smuggled into the United States and sold for as much as $50 — $775 today!
Ernst of course knew all about the publishing and legal history of Ulysses and set about to find a publisher courageous enough to mount a test case. Eventually, Bennett Cerf, the president of Random House (founded only six years earlier), agreed to publish it and hired Ernst to defend it. Ernst negotiated a contingency fee of five percent of the royalties if the book were legalized and published. Cerf was sure that Ernst could handle the litigation “better than anyone else in the country.”
Given the resistance of some judges to hear expert witness testimony in obscenity trials, Ernst came up with the ingenious idea of having favorable reviews of Ulysses pasted into the single copy of the book to be imported into the United States. To ensure that the test case would be based on that specific copy, Ernst’s associate alerted the customs officials that the book was on its way addressed to Random House, expecting that it would be seized upon arrival. A few days later, the book arrived … at offices of Random House! It had passed through customs. Ernst personally marched the unopened package to the customs office and demanded that it be searched. When the inspector discovered it was Ulysses, he muttered, “Oh, for God’s sake, everybody brings that in. We don’t pay attention to it.” Ernst insisted, and the book was officially seized on May 8, 1932. On December 9, the US Attorney’s office charged that 260 passages of the book were obscene. The battle over Ulysses had begun.
Meanwhile, Ernst had another trick up his sleeve. He arranged for another copy of Ulysses to be imported under “the classics” provision of the Tariff Act which allowed the “admission of so-called classics or books of recognized and established literary or scientific merit into the United States, when imported for noncommercial purposes.” On June 16, 1933, Ulysses was admitted into the United States as “a classic.” It was not a declaration that the book was not obscene, but Ernst used the laudatory designation to pressure the government to drop the prosecution. It didn’t work, but having the US government recognize the book as a “classic” gave Ernst a leg up.
He got another boost when the case was assigned for trial to Judge Woolsey, the same judge who had ruled in Ernst’s favor in the Married Love and Contraception cases. After both sides filed extensive briefs exploring competing views of obscenity law, on November 25, 1933, a year and a half after the book had been seized, the case of United States v. One Book Called Ulysses was called for trial.
Woolsey began by talking animatedly from the bench, describing his experience of reading Ulysses. “Some of it was so obscure and unintelligible that it was difficult to understand it at all,” he explained (previewing what many college students have said ever since). “Parts of it are pretty rough, really, but other parts are swell. There are passages of moving literary beauty, passages of worth and power.”
Seeing where the wind was blowing, Ernst stood, and for over an hour presented what Barbas calls “his memorable argument.” He went to the heart of the prosecution’s case. Would the book be apt to corrupt a girl of 18 or 20? “I don’t think that’s the standard we should go by,” he replied. The “law does not require that adult literature be reduced to mush for infants.”
His main theme was the arbitrariness of words. He proceeded to give Woolsey a lesson in language beginning with what has come to be known as his “famous meditation on the word fuck.” There was nothing inherently dirty about the word fuck, which Ernst deliberately used repeatedly in the packed courtroom in an effort to take the sting out of it. “One etymological dictionary gives its derivation as from facere: ‘to make — the farmer […] fucked the seed into the soil.’” Ernst continued comfortably in that fashion until the judge turned the conversation in the last 10 minutes of Ernst’s argument to the judge’s interest in antique furniture.
Two weeks later, on December 6, 1933, Judge Woolsey issued his historic decision, finding Ulysses not obscene. “In typical Woolsey style,” Barbas writes, “the opinion was witty and erudite but short on legal reasoning and analysis.” She adds that many “likened the opinion to an eloquent book review rather than a judicial ruling.” He declared that a literary work must be judged as a whole, assessing its effects on the average adult according to contemporary standards, considering the author’s intent and the work’s literary merit. The result was a major victory for Ernst and a landmark in the law. Random House included Woolsey’s opinion as a foreword to the first edition of Ulysses ever legally published in the United States. It is estimated that the book was read by more than half a million people.
The ruling and ensuing publication led to a media frenzy, most of it praising Ernst by name. The New York Herald Tribune called the legal battle the culmination of an “amazing series of amazing victories for Morris Ernst.” Coincidentally, prohibition on alcohol had been repealed the day before, prompting Ernst to declare: “We may now imbibe freely of the contents of bottles and forthright books.”
Although the local prosecutor recommended the government not appeal, calling Woolsey’s ruling a “masterpiece and thoroughly wholesome,” the new US Attorney, Martin Conboy, a devout Catholic and former counsel of the New York Society for the Suppression of Vice, took over personal charge of the case and announced he would appeal.
Oral argument on the appeal was heard on May 16, 1934, and Ernst couldn’t have hoped for a better panel: the eminently respected Learned Hand, known for his advocacy of free speech; his cousin, Augustus Hand, who had written the unanimous opinion in Ernst’s favor in the Sex Side of Life case; and Martin Manton, chief judge of the Second Circuit.
“This book is filthy, offensive to modesty, subversive of decency,” Conboy told the appellate judges. “[T]herefore it complies with all the definitions of obscenity which I have read.” “All vices and all licentious thoughts are set forth without restraint,” he continued. He ended his oration with an impassioned reading of Molly Bloom’s soliloquy. “It is obscene! It is obscene!”
Rising for his one-hour argument, Ernst praised Ulysses as a great work of fiction and Joyce as a “majestic genius.” Reminding the court that the book was taught in English courses at Harvard, Ernst described it as “a study of the human mind and emotions in certain phases.” Piercing the hypocrisy behind obscenity laws, he charged that “[t]hose shouting loudest for censorship are the big business fellows who tell dirty stories in Pullman cars.”
On August 7, 1934, the appeals court, in a 2-1 decision, vindicated Ernst’s views. Writing for the majority, Augustus Hand held that literature, like works of physiology, medicine, science, and sex instruction, when the presentation “is sincere, and the erotic matter not introduced to promote lust and does not furnish the dominant note of the publication,” is immune from obscenity laws. “We think that Ulysses is a book of originality and sincerity of treatment and that it has not the effect of promoting lust. Accordingly, it does not fall within the statute, even though it justly may offend many.” Manton, morally outraged by the book, filed an indignant dissent, asking, “Who can doubt the obscenity of this book after a reading of the pages referred to, which are too indecent to add as a footnote to this opinion?” Conboy was outraged but the solicitor general of the United States declined to appeal the case to the Supreme Court.
The Second Circuit opinion had a major impact on law and culture. It was cited in more than 300 subsequent cases and established the foundation of later Supreme Court decisions limiting the reach of obscenity laws. Citing the Harvard Law Review, Barbas calls the Ulysses decisions “the most important in the three-hundred-year-long Anglo-American struggle against legal restrictions on writings about sex.”
By successfully challenging censorship, Ernst did good. He also did well. His contingency deal with Random House paid off handsomely, estimated in today’s dollars at about $4 million.
In a chapter delightfully entitled “The Importance of Being Ernst,” Barbas traces how the victorious champion of Ulysses solidified his reputation, according to one newspaper, as “the ablest of the progressive leaders of the American bar” and one of the “leading liberal lawyers of America.” Now he was a part of New Deal circles, having established friendship with progressive luminaries like Felix Frankfurter, Henry Wallace, Harold Ickes, and many others. Behind all of them was the mythic figure of Franklin D, Roosevelt — “the Boss,” Ernst called him — whom he worshiped as a god.
Ernst was approached to run for mayor of New York and for Congress. He was mentioned for various political appointments. He was considered for US Attorney for the Southern District of New York. He was high on Roosevelt’s list, which triggered his first connection with Hoover, albeit behind the scenes. Hoover directed agents to conduct a “discreet” background check of Ernst. Although the ensuing report contained the usual references to his role with the “communistic” ACLU, it acknowledged that leading members of the New York bar regarded him as “outstanding in ability and integrity.” He was rated highly by the New York Bar Association, which called him “one of New York’s most prominent lawyers.” Nevertheless, the effort fizzled and Ernst would never serve in any public office.
In the end, as Barbas puts it, Ernst and his friends recognized that “his restlessness, whimsicality, quirkiness, and independence made him ill suited to serve in a public position that required stability, allegiance, and deference.” Instead, he would exert his influence and enjoy being close to those in power by performing “off-the-record-chores” and “pulling wires from behind the scenes” for New Deal administrators, New York Mayor Fiorello La Guardia, and President Roosevelt himself.
“Ernst built bridges between the ACLU and the Roosevelt administration,” Barbas writes, “brought civil liberties issues to the agendas of New Deal leaders, helped the ACLU achieve many of its policy goals, and brought the ACLU further into the cultural and political mainstream.”
While Ernst was establishing himself as “the ablest of the progressive leaders of the American bar,” the country was undergoing a divisive crisis fueled by fervent anticommunism, and the ACLU was a prime target. “Professional patriots, antiunion businessmen, and other traditionalists,” Barbas writes, “tried to stop the wave of radicalism that started with the onset of the Depression, encouraged by the liberalism of the New Deal.” Congress and state legislatures were flooded with bills to curb free speech, punish “sedition,” and fire radical teachers for their political opinions.
The ACLU’s annual report for 1935 declared it the “toughest” in its 15-year history. “Not in years have the principles of civil liberty been so under fire as they are today in an attempt to outlaw by federal and state legislation […] the Communist Party, all anti-capitalist organizations, and militant labor and farmer movements.”
Newspapers owned by conservative William Randolph Hearst published a front-page editorial titled “Unmasked,” claiming the ACLU was a communist organization. In The Red Network: A “Who’s Who” and Handbook of Radicalism for Patriots, Elizabeth Dilling alleged that the ACLU was “directed by Communist and Socialist revolutionary leaders and their sympathizers […] work[ing] untiringly to further and legally protect the interests of the Red movement.” Ernst and others were singled out by name, in his case for writing “a sex book […] recommended by the atheist Free Thought Club.”
While the ACLU was never a communist or communist-affiliated organization, Roger Baldwin was involved with several Popular Front groups sympathetic to the communist agenda in support of workers’ rights and racial equality. Many of these groups were established by the Communist Party with appealing names such as the Civil Rights Congress, the International Workers’ Order, and the American League for Peace and Democracy, chaired by Harry Ward at the same time he chaired the ACLU.
Despite the fact that the ACLU was seen as “red-tinged,” prominent ACLU leaders such as socialists Norman Thomas and John Haynes Holmes were outspoken critics of the Communist Party and the “Popular Front” tactic. So was Ernst. By 1936, he was at odds with the communists and anxious about the increasing presence of Communist Party members in liberal organizations, following revelations of wide-scale repression and political murders in the Soviet Union and the Moscow show trials in which Joseph Stalin’s former colleagues “confessed their crimes” before being executed. By 1938, Baldwin was becoming more centrist and increasingly sensitive to charges of communist influence in the ACLU. He severed his ties to Popular Front groups and recruited conservatives to balance the ACLU’s far-left faction.
Meanwhile, attacks on the ACLU increased when the House Committee on Un-American Activities (known as HUAC) was established by Congress in the spring of 1938. Chaired by Martin Dies, an ambitious Texas Democrat, HUAC permitted witnesses to make unsubstantiated accusations, without attempts at independent verification, and often without according the accused the right to reply. The ACLU was accused of communist affiliation six times in front of the committee in 1938, and Dies went on the radio claiming that the organization was controlled by communist and “carrying on the work of the Communist Party under the guise of democracy.”
Despite sworn affidavits by Baldwin and other ACLU leaders stating that the ACLU was not a communist front, in January 1939 HUAC argued that the ACLU be investigated and issued a report alleging that the organization had ties to the Communist Party. Baldwin and Ernst went on the radio calling on listeners to write their representatives: “The Dies Committee Must Die!” Nevertheless, Congress reauthorized HUAC by an overwhelmingly bipartisan vote of 344-35.
Ernst’s battles with HUAC did not distract him from his battles for free speech. His successful challenge to the autocratic mayor of Jersey City, New Jersey, Frank Hague, who was brutally suppressing union organizing and quashing free speech and assembly, would lead to a landmark Supreme Court decision that would mark the high point in Ernst’s legal career.
First elected in 1917 and nicknamed the “Hitler of Hudson County,” Hague stayed in power by stealing votes, intimidating opponents, wiretapping, and making false arrests to silent his critics. In a 1937 speech, he declared, “I am the law in Jersey City,” and, “Our law is the nightstick and we use it.” He latched onto communism as the symbol of threats to “Americanism” and “law and order.” “We hear about constitution rights, free speech, and the free press,” Hague thundered. “Every time I hear those words I say to myself, ‘That man is a Red, that man is a Communist.’ You never heard a real American talk in that manner.”
On November 29, 1937, in an effort to organize unskilled workers in Jersey City, members of the Committee for Industrial Organization (CIO) and the United Shoe Workers of America marched through the early dawn streets, passing out handbills that announced an upcoming meeting. The police confiscated the handbills, herded many of them onto a ferry bound for Manhattan, and arrested 13 organizers. Seven were found guilty for violating the city’s ordinance against distributing circulars without a permit. On appeal, the CIO asked Ernst to represent them, and he agreed. Many CIO-affiliated unions had significant communist membership who believed deeply in industrial unionism. Ernst worked with Lee Pressman, general counsel of the CIO, who had communist ties, and Spaulding Frazer, dean of the Newark Law School. In late December, Ernst formed the Committee on Civil Liberties in Jersey City. It was made up of 64 notables from the theater, religion, law, journalism, and academia, and its goal was to make the Jersey City fight “respectable.”
In retaliation, Hague attacked Ernst personally, calling him an “associate of the leading communists of the country.” Ernst retorted, promising to keep going until Jersey City was opened “to the Bill of Rights and make it again part of the United States.” Hague threatened retaliation: “I will guarantee that his friends will not see him for a long time.”
On January 7, 1938, Ernst and his colleagues filed a federal lawsuit alleging that Hague and Jersey City had violated the First and 14th Amendments. In the lawsuit, they sought to restrain the authorities from interfering with the plaintiffs’ efforts “to preserve the principles of liberty and freedom inherent in American democracy and to prevent the Jersey City example from leading to dictatorship on a national scale in the United States.” They were facing an uphill battle. The trend of the law up to that point gave city authorities virtually complete control over open-air meetings. To avoid the New Jersey state courts, Ernst invoked the rarely used Civil Rights Act of 1871, known as the Ku Klux Klan Act, allowing suits against state officials in federal court.
The case went to trial in June 1938. Ernst’s colleague, Spaulding Frazer, called Hague as a witness in their case in chief and questioned him over the first two days of the trial. Then Ernst took over. The New York Times reported that “the event took on the aspect of a Donnybrook Fair,” as Hague and Ernst yelled at each other. It got worse when Hague’s lawyer used Hebrew words in a crude antisemitic attack on Ernst. Prominent Jewish leaders urged Ernst to withdraw from the case because he was hurting Jews by “identifying a Jew with subversive and disreputable ideas.” In despair, Ernst wrote to Supreme Court Justice Louis Brandeis, the first, and as of then only, Jew on the Court. Brandeis replied that if Ernst ever decided to accept or decline a case “because of the popularity of the client, I suggest you first resign from the bar. Maybe, if that happens, you should resign from the human race.”
Ernst did not resign and instead was rewarded with an unexpected ruling from the federal court enjoining Hague and city officials from interfering with the organizers, the distribution of their literature, and their holding public meetings. Hague appealed to the Third Circuit Court of Appeals and lost again. The court declared the Jersey City ordinance unconstitutional and placed even greater restrictions on the city.
The Supreme Court heard oral argument on February 27, 1939. Frazer argued the law and Ernst the facts but he faltered in part due to the bad manners of Justice James McReynolds, widely known for his antisemitism, who habitually left conferences among the justices when Brandeis spoke. To display his disgust, McReynolds turned his chair around presenting his back to Ernst.
But again Ernst had the last word. On June 5, 1939, the Supreme Court in Hague v. Committee for Industrial Organization ruled 5-2 in his favor. The Court held that under the 14th Amendment, the public had an affirmative right to access streets and parks — “public forums” — which are “held in trust for the use of the public and, time out of mind […] used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”
Ernst told The New York Times, “The next time any tin-hat Hitler wants to run his bailiwick like a czar he’ll have to think twice about it.” He received immense praise for his victory. Columnist Walter Winchell reported that Ernst was in line for a federal court judgeship. But Ernst wrote directly to “the Boss,” telling FDR he was not interested in becoming a judge. Roosevelt replied, “You are a man after my own heart! […] In continuing as you are, you are infinitely more valuable to the common cause of a liberal democracy.” Ernst framed the letter and displayed it in his office for the rest of his life.
Ernst’s brilliant legal career offered him no respite from the persistent conflict between his hatred of communism and his belief in free speech and civil liberties. “This internal struggle,” Barbas writes, “led him to convoluted positions, odd alliances, and diminished credibility in liberal circles, not to mention the loss of lifelong friendships. It marked a new phase in his life, a long phase, and not a good one.”
In 1936, Ernst had gathered a group of lawyers at his home, including Mortimer Riemer, a Communist Party member, to form the National Lawyers Guild, “a national association of American lawyers which will be a truly progressive force in the life of the nation.” Temporary headquarters were established in Ernst’s office, and Riemer was chosen national secretary. On February 19, 1937, 600 lawyers from around the country gathered in Washington, DC, for the founding convention of the National Lawyers Guild. Roosevelt sent a welcome letter, expressing his view that it was time “for progressive thinking” and that he had “every confidence that your deliberations will affect the welfare of your own profession and the well-being of the country at large.” John Devaney, chief justice of the Minnesota Supreme Court, was elected as the first president, and key speakers included assistant Attorney General and future Supreme Court Justice Robert Jackson.
But soon Ernst was complaining about “extremists” in the NLG leadership. By the end of 1938, he had begun a campaign to purge radical members from the organization. He presented a resolution to the NLG Executive Committee to amend its constitution to condemn “dictatorships of both the left and right” and bar members of the Communist Party or fascist groups from joining the NLG or holding office. Expressing concerns about “red-baiting,” the Executive Committee voted down the resolution.
As in all things, Ernst was unrelenting. At the third annual NLG convention in Chicago in February 1939, he again put forward his resolution. After intense discussion, the board of directors deferred taking any action so they could attend the convention banquet. At the banquet, the retiring president offered unexpected remarks aligning himself with Ernst. When the members of the board reconvened later that night, several members spoke against Ernst’s resolution. Some argued that a blanket denunciation of communism would play into the hands of the guild’s critics. Eventually, the board declined to adopt the resolution.
By the 1940 annual convention, Ernst, Jackson, and many others had resigned from the NLG. But while still a member, Ernst had gotten a taste of his own medicine. His appointment to the New York State Banking Board was held up on charges that he was a communist. The communist Daily Worker observed, “Only a few days after Morris Ernst led a red-baiting drive within and against the NLG, he now wakes up to find himself the victim of the same sort of unscrupulous campaign. […] The obvious lesson is, don’t engage in red-baiting.” Eventually, Ernst was confirmed by a vote of 37-5.
Ernst had not learned his lesson. In 1939, he turned his purging sights on the ACLU, which, in Barbas’s words, “precipitated one of the most corrosive and controversial episodes in the organization’s history.” In January 1939, Ernst introduced a resolution before the ACLU board of directors declaring that the organization was against “all totalitarian governments — fascist, Nazi, or communist.” At first, at a poorly attended meeting, the resolution passed 8-4, but at a subsequent meeting, by a vote of 17-6, the resolution was rescinded.
Meanwhile, Congressman Dies continued his attack on the ACLU, even going so far as to ask the Department of Justice to file charges against the ACLU and the Communist Party for failing to register as agents of foreign governments. But at a hearing on October 23, 1939, Dies surprised everyone by announcing that HUAC “found last year, in its reports, that there was not any evidence that the American Civil Liberties Union was a Communist organization.” Why did he suddenly change his mind? Barbas recounts rumors of a “secret deal” Ernst made with Dies that if Ernst would purge the ACLU of communists, Dies would publicly exonerate the organization.
Whether or not there was such a “secret deal,” Ernst continued to gather support within the ACLU to purge communists. At first, the board resisted. In January 1940, the ACLU issued a statement that “[m]embers of the Union differ sharply in their economic and political views and all are free to express them without involving the Union.”
Later that month, Ernst and Baldwin convinced the Nominating Committee that in preparing for the upcoming annual election of officers, they should send out a resolution stating that it is “inappropriate for any person to serve on the governing committees of the Union who is a member of any organization which supports totalitarian dictatorship in any country or who by his public declarations and connections indicates his support to such principles.” The resolution listed the “totalitarian governments of the Soviet Union and the Fascist and Nazi countries such as the Communist Party, the German American Bund, [as well as] the Ku Klux Klan, the Christian Front and others.” Ernst’s gambit didn’t work, and on January 18, 1940, the full ACLU board voted that the Nominating Committee had exceeded its authority.
But the real test came at the national ACLU convention, where on February 5, 1940, the National Committee and the board passed a resolution stating that while the organization “does not make any test of opinion on political or economic questions a condition of membership” nevertheless “the personnel of its governing committees and staff is properly subject to the test of consistency in the defense of civil liberties in all aspects and all places.” This consistency is “compromised” by persons who “justify or tolerate the denial of civil liberties by dictatorships abroad.”
While the resolution won the ACLU “respectability” in business and political circles, it was devastating within the organization. Forty members resigned, condemning the resolution as a “loyalty oath.” One prominent ACLU leader, Corliss Lamont, called the resolution “a major turning point in the retrogression of civil liberties in America.” He described Ernst as the “evil genius behind the whole business of wrecking the regular work of the Union.”
But now what everyone wanted to know was if the ACLU would actually enforce its new policy. It didn’t take long to find out. On March 4, 1940, the ACLU board passed a resolution asking Elizabeth Gurley Flynn to resign. Flynn had served on the National Committee and the board of directors since the ACLU was founded in 1920. When she joined the Communist Party in 1937, she immediately informed the ACLU board and she was told it made no difference. In 1939, she was unanimously reelected to a three-year term running until 1942.
Flynn refused to resign and instead demanded a hearing, written charges, and the right to counsel. She also defended herself with lively articles entitled “Why I Won’t Resign from the ACLU” (published in the New Masses) and “I Am Expelled from the Civil Liberties Union!” (the Daily Worker). Ernst reassured one of Flynn’s critics that he was “with you 100% in this fight.”
The board leveled three charges against Flynn: her membership in the Communist Party, her inappropriate remarks in the New Masses, and her comments in the Daily Worker. The Flynn “trial” was held on the evening of May 7, 1940, at the City Club. To the critical question whether her allegiance to communism would get in the way of her concern for civil liberties, Flynn answered that there had never been any conflict between her civil liberties work and her obligations to the Communist Party. The hearing lasted until 2:20 a.m. the next morning. Seeing where the wind was blowing, Ernst was silent except to say that he “heartily disapproved” of Flynn’s attacks on Baldwin.
The vote on the first charge — membership in the Communist Party — was 9-9, with two abstentions. Flynn was not allowed to vote. The chair cast the deciding vote for expulsion. The votes on the second and third charges were both 12-8 in favor of expulsion. Ernst voted yes on all three charges. When the National Committee was subsequently polled, the vote was 27-13 to uphold the board’s action.
One historian characterized the Flynn affair as “the kind of hearing that the ACLU had denounced elsewhere” and remarked that the techniques “would appear again, in a more public forum, almost exactly a decade later, presided over by a Senator from Wisconsin.” Historian Ellen Schrecker has observed that with the Flynn expulsion “the nation’s most important liberal organization had officially signed onto the anticommunist crusade.” It set the stage for the ignominious shadow to be cast over the rest of Ernst’s life.
Around this time, Barbas writes, “Ernst had a new pal — J. Edgar Hoover.” For the next 20 years, Ernst would send Hoover fawning “tidbits” of advice, gossip, and suggestions, much as he had done to FDR. He even said he “loved” Hoover. But, of course, by this conduct Ernst was casting serious doubt on his own judgment. When the appeal of being an insider led him into this devious relationship with Hoover and the FBI, it would spell the tragic demise of the stellar reputation he had craved and cherished so much.
Based on her research of public and private records, Barbas presents a revealing account of how Hoover and his inner circle at the FBI identified Ernst’s weaknesses and appealed to his obsessive desire to be an insider in the halls of power, coupled with his desire to distance himself from his previous associations with communists. When a controversial wiretapping bill was pending in Congress, Hoover stated he would only support legislation if it was “written by liberal lawyers” such as Ernst. In return, Ernst applauded the FBI’s record and defended it from what he called “rumors and gossip and suspicions.” According to Barbas, “Ernst, in his celebrity worship, was being duped by Hoover.” Aside from the attention he craved from FDR, nothing pleased Ernst more than praise from Hoover. “Egged on by Hoover and one of his top aides Louis B. Nichols, who exploited Ernst’s pathetic wish to feel close to the important and powerful,” Barbas writes, “Ernst continued to volunteer his ‘help’ to the FBI.”
That help generally came both in public and in private. Publicly, the FBI cleverly used Ernst for “image management.” Whenever an article critical of the FBI appeared in the press, Ernst wrote angry letters to the publishers. “I made an intensive study of the FBI,” he wrote to the publisher of the New York Daily News. “I can assure you that I have not found a single instance of violation of civil liberties in any case handled by Hoover’s boys.”
Ernst would even alert Hoover in advance when a negative article was coming out, give Hoover advice on how to respond, and in some cases try to quash the piece. In advance of Baldwin writing an article critical of the FBI for The New Republic, Ernst wrote to Hoover promising to get a hold of a pre-publication copy, send it to Hoover, and ghostwrite part of Hoover’s objections. Shortly after, he met with FBI assistant director Percy Foxforth and proudly explained that “I’m countering several critical articles.” He continued to do so for decades.
In private, Ernst alerted Hoover when the ACLU was planning to publicly criticize the FBI and would go so far as to provide Hoover with copies of ACLU reports and minutes of meetings. While Barbas confirms that Ernst “never revealed any truly confidential information,” did not “spy” on ACLU members, and never “named names, at least as far as his ACLU colleagues were concerned,” he nonetheless “damaged the cause of civil liberties by facilitating the FBI’s long-standing surveillance of the ACLU and persuading some of his friends on the left that the FBI posed no threat to civil liberties.” Barbas argues that in part due to Ernst’s efforts, the ACLU’s criticism of the FBI was “meek” during the 1940s and ’50s.
In 1945, Ernst published his (first) autobiography, awkwardly titled The Best Is Yet, unintentionally drawing attention to the fact that his best years were behind him. Barbas describes the book as “a hodgepodge of buzzing, random thoughts,” although it did make it to The New York Times best-seller list. True to form, Ernst had Hoover review and edit the section on the FBI, in which he wrote that the “assaults on Hoover […] do not stand up in the eyes of anyone desirous of looking at the complete record.”
With the death of FDR, as Ernst aged and became more conservative, Barbas describes how his defense of the FBI became his “main crusade” and took on “a new, frightening intensity.” His relationship with Hoover became “obsessive, almost childlike,” always needing “someone powerful in his life, an authority figure to admire and please.” Ernst sent hundreds of letters to Hoover, made countless phone calls, and held innumerable personal meetings. Inside the FBI, Ernst was seen as a “toady.” Hoover and his colleagues pretended to give his ideas serious consideration but would usually file and forget them, unless Ernst could be helpful in the bureau’s “image management.”
As FBI violations of civil liberties became increasingly public, including wiretapping and the inclusion of hearsay and gossip in FBI dossiers, Ernst was unmoved. When Time published a piece mocking Hoover, the director turned to Ernst who was able to secure an apology from the magazine. It also ran his fawning letter, in which he described himself as a “friend and attorney for Mr. Hoover,” although he never actually represented the director. Ernst regularly sent Hoover letters he received from critics of the FBI, sometimes admitting that he was “double-crossing” his friends but did so with “justified motives.” During this period he indeed “name[d] names,” when he occasionally suggested to Hoover that certain individuals were communists.
In 1948, 12 top Communist Party leaders were indicted under the Smith Act, which outlawed advocating the overthrow of the government by force or violence. Ernst supported the prosecution and formed an ACLU Clear and Present Danger Committee, in hopes the ACLU would take the position that anonymous or “secret advocacy” was not protected by the First Amendment. The defendants on trial had not committed any overt act in furtherance of revolution or even discussed plans for revolution; their “advocacy” of overthrowing the government consisted only of teaching abstract doctrines of Marxism.
Baldwin thought Ernst’s analysis was deeply flawed and said so in The New Republic. “In spite of Morris Ernst’s novel principle, the only fair acid test I can conceive would continue to be ‘clear and present danger.’ Ideas alone should not be punished as incitements in the absence of acts or immediate danger of them.” One historian has observed that Ernst’s anticommunism had carried him “toward a defense of even more repressive government actions, including the prosecution of Communist leaders under the Smith Act and the FBI’s antiradical program.”
Baldwin resigned as the head of the ACLU in 1950. In 1954, Ernst stepped down as general counsel and in 1955 he resigned from the board of directors, although he was given the title vice chairman, an inactive position. In the early 1950s, his relationship with Hoover was at its peak. As a reward, Hoover put Ernst on his “Special Correspondents” list, and in return Ernst continued to send Hoover minutes of ACLU meetings; pressure editors to send him advance copies of anti-FBI articles, which he forwarded to Hoover for “censoring”; and wrote pro-FBI articles with titles such as “Why I No Longer Fear the FBI” and “Let’s Help People Quit Being Reds.”
When Julius and Ethel Rosenberg were convicted of violating the Espionage Act in March 1951, Ernst tried to insinuate himself into the case telling their family he had an angle that could save the couple’s lives. Meanwhile, he was privately reporting to his handlers at the FBI that he would get involved “solely for the purpose of being able to talk to the Rosenbergs and possibly get them to talk,” according to an FBI memo. In The Rosenberg File, published in 1983, authors Joyce Milton and Ronald Radosh conclude that FBI records painted “a shocking picture” of a lawyer offering to represent clients “only with the FBI’s permission, and then, in effect, only to act as the Bureau’s servant.” Another writer, Richard Harris, observed that Ernst’s effort “was probably a disbarable act and was certainly a disgraceful one.” Barbas concludes that “Ernst’s ham-handed and disturbing efforts to intervene in the Rosenberg case reflect his state of mind at the time — arrogant, overconfident, enmeshed in his own quack theories, infatuated with authority, and at the same time still possessed of a kernel of good, always willing to ‘help’.”
Ernst lived out the remaining years of his life pursuing his “crusades” for reproductive rights, the rights of the elderly, expanding the marketplace of ideas through literacy and education, and combating censorship and bigotry. He wrote several books, including two more autobiographies. (He was unsuccessful in finding anyone who would write his biography.) And he consoled himself by sending annual entries to Who’s Who, each year embellishing the “facts,” including claiming to have been “one of the founders with Roger Baldwin of the ACLU in 1920.” Barbas asks if he suffered from a poor memory or senility. “Or was he still deeply insecure, feeling still like the lonely boy with a tubercular mother, the sole Jew at an elite WASP college, an outsider at the bar, needing to prove that he was better than others? Did he feel, in his extraordinary life, that he had still not done enough?”
Possessed of a keen intelligence and boundless energy, he enjoyed such great success and adulation early in his career that he felt confident he could exercise influence over those in power. But the tragedy of Morris Ernst may be his naïveté: he failed to develop the judgment and discernment to understand that not everyone uses their power for just and humane purposes. In particular, despite his well-honed suspicion when it came to the power of government to censor controversial literature and unorthodox ideas, he fell prey to the fervor of anticommunism and applied his considerable skills and stature to helping the government punish controversial and unorthodox political and economic ideas. One can only imagine the place he would hold today in the pantheon of America’s great civil libertarians had he marshaled his advocacy of the Constitution, freedom of expression, due process, and fundamental fairness in service of the victims of the Red Scare, McCarthyism, and the abuses of the FBI.
Ernst died on May 21, 1976, at the age of 87. He had no funeral. At the end of the summer, dozens of his friends and colleagues gathered for a touching tribute. Morris Ernst, one generous and forgiving commentator observed, was “probably fighting to get Ulysses into heaven.”
Stephen Rohde is a retired constitutional lawyer, lecturer, writer, and political activist.