Oral history interview with McNeill Smith by Eugene E. Pfaff

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GREENSBORO VOICES/GREENSBORO PUBLIC LIBRARY ORAL HISTORY
PROJECT
INTERVIEWEE: McNeill Smith
INTERVIEWER: Eugene E. Pfaff
DATE: March 7, 1977
[Begin Tape 1, Side A]
EUGENE PFAFF: Our interviewee today is State Senator McNeill Smith. Born in Rowland,
in Robeson County in North Carolina, in 1918. Senator Smith is the son of Dr. John
McNeill Smith and Roberta Olivia Andrew Smith.
Senator Smith graduated from the University of North Carolina at Chapel Hill
[UNC] in 1938, where he was a member of Phi Beta Kappa, Delta Kappa Epsilon
fraternity, Golden Fleece, and the Order of the Grail. Upon graduation from UNC,
Senator Smith received a law degree from Columbia University Law School in 1941.
Prior to serving in the United States Navy during the Second World War, he
worked for the prestigious Elihu Root, Grenville Clark [Root, Clark, Buckner &
Ballantine] law firm in New York. Senator Smith began his law practice in Greensboro in
1945.
Senator Smith married the former Louise Huske Jordan in 1941, and they have
four children: Louise Jordan (Mrs. David Nichols); Anne Talbott Smith (Mrs. Joseph
Cole); John McNeill Smith III; and Eleanor Huske Smith.
I’d like to welcome you to the Greensboro Public Library Oral History program,
Senator Smith. I’d like to begin by asking you what memories you have of your years at
Chapel Hill?
MCNEILL SMITH: Well, I have a flood of memories. And the most important experience, I
suppose, was working on the Daily Tarheel, and ultimately, in my senior year, being the
editor of the Tarheel. But the Tarheel was the one thing at that time which seemed to
reach all the faculty and all the students, and in our view on the paper held the, held the
university together. I’m sure that wasn’t so, but--now you have radio and T.V. stations
and other student activities that may serve that purpose. But the Tarheel, which went to
everybody everyday, except Monday morning, was a kind of unifying force.
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EP: If I understand, you had the reputation of being--prodding the students to look at world
and international events, particularly what was going on in Europe at that time, in your
position in--
MS: Well, it was a--there was a great deal of interest among the students in world affairs. And
I think Dr. Frank Graham [president of UNC] encouraged this, and so did a number of
other faculty members.
And the students were expressing that interest in terms of wanting to get a bonus
paid to them before the next world war, so they could enjoy the bonus before the war
instead of after it. That was a typical student attitude, I suppose. But we had a lot of
meetings with Duke [University] and various other places in the state. And we--this was a
big trumpeted call.
EP: I also understand that you were a delegate to the Student Seminar for World Peace in
Geneva in 1937. Could you describe what that was all about?
MS: Well, Sir Norman Angell had won the Nobel Prize on the basis of some investigation and
a book that he wrote called The Great Illusion. And it was his view that no country
profited by war. In the earlier days, it was thought that if you were successful in war, you
got a lot of booty out of it. And his work tended to show that really you got a lot of
problems and a lot of responsibilities even if you won.
So Norman Angell ran this seminar, which had about thirty or thirty-five students
in it from all over the world. And I made a lot of friendships there which have lasted a
long time. One of the students was Walter Rostow, who later was chief advisor to
President [Lyndon] Johnson, lived in the White House, probably got blamed a great deal
for the Johnson policy in Vietnam, so much so that the faculty at MIT [Massachusetts
Institute of Technology] wouldn’t take him back after the Johnson administration ended.
He is now teaching at [the University of] Texas. Walter Rostow married one of the girls
that was on the seminar that summer. He didn’t marry her that summer, but she later
became Mrs. Rostow.
Another member of that seminar is the Gallup of Canada. That is, he runs a public
opinion poll comparable to the Gallup poll. Some of the others became lawyers. I
continuously heard from some of the others in foreign countries. I remember a friend in
Turkey entertained my daughter when she went on a trip several years ago. So that
friendship from the student seminar in Geneva in 1937 has continued.
EP: What influenced you to enter the legal profession?
MS: Oh, I was given a scholarship. There’s no question about it. I, I had thought about
working for the Raleigh News and Observer as a reporter, or in the alternative, working
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as an intern for the editors of one of the papers, a Pulitzer Prize winner and storywriter
whom I’d heard speak at Chapel Hill.
And then one day, one of the professors came by and said, “How would you like
to have a scholarship to Columbia Law School? We’ve usually been able to get one of
our students to fill that post.” And somebody who was ahead of me was going to
graduate. And I said, “Well, I’d be very interested in it.” For a boy growing up in
Rowland in Robeson County and never getting much further than Chapel Hill all their
life--I’d visited some in Baltimore, where my mother’s family had some connections--I
thought maybe New York would be a good experience.
So I took the scholarship. And once, once you got to law school and managed to
survive the first year, then you got a vested interest in finishing, which I went on and did.
EP: I’d like to turn, if I may, now to your coming to Chapel Hill--to Greensboro, rather, in
1945. How did that situation come about?
MS: Well, Mr. Julius Smith, who’s no kin to me--in fact, I’d never heard of him or any person
in Greensboro, I suppose. I had heard of Ed Hudgins. Ed Hudgins had been a Rhodes
Scholar at Chapel Hill and a member of the Golden Fleece, and had come and talked to
our group one time. I think Ed Hudgins was the only one from Greensboro, only lawyer,
certainly, that I knew about.
But newly into my military service, when I got back from China and Burma, the
second overseas assignment that I had, I had a little leave that had built up. And I went
around different parts of North Carolina looking for a job--Charlotte, Raleigh,
Lumberton, Greensboro, some other places. And Mr. Smith, who was referred to me, and
I was referred to him, by Judge Parker in Lumberton--Mr. Smith was looking for
someone else to join his firm. There had been some cut-off of personnel, reduction in
force, in his firm during the war. Arthur Cooke[?] was away and Joe[?] Chapman was
away, and the staff of lawyers were very few in number.
So he offered me two hundred dollars a month. That was the best offer I found
anywhere in North Carolina. And in Charlotte, for example, not only was I offered less
money, but I was told that I would have to sign a contract not to represent any of the
clients of the firm if ever I was fired or disassociated from the firm. And I said, well, that
was quite a compliment that I could take the clients. But I was, I was puzzled by it. Now
that wasn’t brought up in Greensboro.
Another thing, it seemed to me that the firms in Greensboro, all the firms in
Greensboro, seemed to be larger and have better furniture at that time [laughs] than they
had in Charlotte. Now it’s changed a lot. Charlotte’s got some opulent law firms now.
And Judge Parker, who had been a friend of mine for many years, Judge John Jay
Parker on the Fourth Circuit, Chief Judge of the Fourth Circuit, had asked me before the
war if I’d be his law clerk. And when I got this offer to work with Root, Clark, Buckner,
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and Ballantine firm in New York, he urged me to take it. He said, “If you can work in the
same building with Grenville Clark, it’d be well worth it.” And, furthermore, I told Judge
Parker I had a low draft number and was going to be called up pretty soon. And it would
be hard on him if I started out his law clerk and then have to quit right after I started. He
said, “You go and do that.”
And then after, after I’d been in the service four years, I talked to him about
where to locate. And he thought that Greensboro was a better place to locate than
Charlotte, because in Charlotte they were very Scotch Presbyterian and didn’t believe in
paying lawyers right.
EP: [laughs] I think it was to Greensboro’s benefit that you came here.
MS: Well, I don’t know. But I’ve enjoyed it. Greensboro’s been wonderful to me. It really has.
EP: What was your participation in the World Federalist Movement and the American
Freedom Association?
MS: Well, the purpose of the student seminar in 1937 had been to try to agree on some policy
for structuring the relations between nations so it could prevent another war. You know,
obviously we hadn’t succeeded in that, because World War II had come along. But it was
an interesting experience in exploring the possibilities of what was then called collective
security. All the good nations would band together to move collectively against some
aggressive nation. That was the theory.
Well, at the end of the war, and particularly after the dropping of the atomic
bomb, a lot of us still in touch with each other thought that you really needed something
more like a government for the world community, limited with--with very limited
powers, but sufficient powers to deal with violence at the world level. In other words, we
wanted to extend the federal principle to the world level.
In the United States, we have state and local governments and they deal with most
problems. But then there are certain powers that are delegated to the national government
to deal with relations between states and between citizens of different states. And we
thought we ought to extend that federal principle to the world level. Otherwise, separate
sovereign nations were going to inevitably collide, and there would be another world war,
particularly with atomic bombs, which would be very disastrous for the human race.
And that was the general thinking of a lot of people that had been connected with
the promotion of the United Nations and the promotion of selective security before and
during the war. We suddenly realized that really, the United Nations, as it was
constituted, wasn’t a government for the world. It did not embody the federal principle,
and that it would have to be revised and changed if it were to serve a peacekeeping role.
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So there was a group called World Federalists, United States of America--World
Federalists USA--which had some interested persons in many states and had the strong
backing of some of the magazine editors. Then there was another group called Americans
United for World Government, which had a chapter at Chapel Hill. And Professor Henry
Brandis, who later became a law student there, was very prominent in that group. And
then there was another group that centered largely out of University of Chicago, which
was calling for a World Constitution Convention. This was 1946, end of ’45 and the
beginning of ’46.
Interestingly enough, Mr. Clark, Grenville Clark, had called a conference at
Dublin, New Hampshire, his home. Clark is the same one that was the partner in the law
firm in New York that Judge Parker said I ought to do anything to work in the same
building with. And the Dublin Declaration was a very interesting document, and some
day, I think, will be remembered, because it was a pioneer call for bringing law and order
to the world community. You can’t have law without government.
And the old--I remember we had a little syllogism that said, “There can be no
peace without justice, no justice without law, and no law without government to make
and enforce the law.” And that was the logic by which you got to the call for revising the
United Nations and making it more nearly like a federal world government.
Well, these different organizations were promoting their different views toward
somewhat similar goals. And it was decided by some of us that we ought to have a
meeting to try to see if we couldn’t get them all together in one large organization. And
the place that was picked was Asheville, North Carolina. And the date was February 22,
George Washington’s birthday, 1947. And that was a really, a great convention.
You know, Asheville had many good hotels. And there were people from all over
the country, mainly Chicago and the Midwest, and New England and New York, and the
Southeast. And Robert Lee Humber was there. And Humber had been a Rhodes Scholar
from Wake Forest [University], had lived in Paris and practiced law there, and had been
run out by the Nazis in 1940. And he had gone to various legislatures in this country, I
believe twenty-five or twenty-six, and gotten them to pass resolutions. North Carolina
was the first saying that--and this was in March of 1941, before we even got in the war--
saying that this war was going to not solve anything, and that there would be continued
rivalry between nations and that we had to move towards a federal world government, or
world federation, as we called it. And North Carolina was the first legislative body
anywhere in the world--in the world--to adopt that point of view by passing a resolution.
I bragged about that some time ago to one of the members of that 1941 General
Assembly, [Greensboro attorney] Beverly Moore. And he said, “Well, don’t get too
cocky, because that same session of the legislature also passed a resolution which made
the caterpillar the state worm of North Carolina.”
Any rate, we had the meeting in Asheville. Mayne Albright, who later was to run
for governor and who was going to help make Kerr Scott the next governor, was there
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and was the first presiding officer of that convention to bring the world federation groups
together. And something called United World Federalists, the UWF, came out of the
Asheville meeting. But it was a North Carolina location for this union of the federalist
groups.
And for several years thereafter, we had chapters in the major cities in North
Carolina. I suppose we had maybe three or four thousand members in the state. We had a
full-time executive secretary or director that moved around in any number of programs.
We printed some literature. We got up a petition of North Carolina leaders, which were
sent to our senators in the United States Senate. I remember--and still have it hanging on
my wall. It’s the best collection of names I’ve ever seen in one place at one time. I mean,
all the members of the council of state, all the federal judges in the state, leaders of the
banking industry and labor groups, agricultural groups, famous preachers, famous
industrialists, like Spencer Love of Greensboro. We had all sorts of blue ribbon names on
this petition.
And I remember [North Carolina] Senator [Clyde] Hoey made quite a speech on
the floor. Of course, it may not have been the biggest thing that ever happened, but to us
here in North Carolina it seemed to be an important event.
And then, as you know, the Korean War broke out. And at first it was thought that
the United Nations was performing its peacekeeping function by being the policeman in
Korea. But as that war soured, a lot of people got the idea that the United Nations was not
our best hope, and we ought to abandon it and leave it alone and go our separate
independent way as a nation, and we have done that to a large extent. President Carter has
been talking about trying to revive the United Nations as a force for peace, a force for law
and order in the world.
And I’ll never forget that Judge Parker, who was one of our early advisory board
members for World Federalists in North Carolina, wrote me finally after Korea. and he
says, “You’re being too critical of the United Nations, trying to change it. You ought to
go along with it.” This was, at the time it was very popular, at the time of the Korean
War. And I wrote back, and I said, “Fine. If you don’t want to be on the advisory board,
that’s understandable. But the critics are really trying to save the organization, because
it’s too weak. It can’t do anything.”
It’s like what George Washington called the old Articles of Confederation before
our country. He called it a rope of sand, it won’t hold nobody. And that’s turned out, I
think, to be the case. And it’s a right funny thing that those who were the most critical of
the original United Nations, saying it was going to get into trouble and needs to be
changed, now appear to be its last surviving supporters and friends, trying to save it still.
And there were many, many people who were enthusiastic about it in the late
forties and early fifties, very early fifties, who were kind of fair-weather friends. They
said, you know, beat the drum, the United Nations is great. But then when they got into
difficulties with it, they would be willing to abandon it and have abandoned it.
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Basically, though, the problems of organizing the world community so that it can
live under a regime of law are still with us. And I think maybe the younger generations
coming through--students--basically realize that we’ve got to establish adequate
institutions at the world level if we are to solve problems through law rather than through
anarchy.
EP: Well, your participation in these two movements indicates your support of civil rights,
whether it be on an international, national, or local scale. And I’d like to discuss your
other activities--
MS: I think it indicates a consistent recognition that human beings really can’t be expected to
live together in close contact without fighting unless they live under law. Law is a great
invention of the human race. And we have recognized that, so that at the local level if
somebody says, you know, “Everybody in Greensboro is so good and we all speak the
same language--we don’t need any government. We don’t need any police. We don’t
need any courts. Let’s just do away with it and live together here in peace.” You think we
would? You’d think that person was crazy. You’d run him out of town on a rail as being
nuts.
And I suppose the same thing would be true if you wanted to disband the
government of North Carolina and rely on the goodwill of everybody, or the United
States of America. But when it comes to the world community, which now is closer than
ever before, because of advances in transportation and communication, the idea that it--
this large group of even more diverse people can live together without fighting, not
necessarily this year or next year, but somewhere down the road, is a kind of an idealistic
dream. And I’m much more practical and conservative than to believe in that kind of
dream. I think we’ve got to keep working towards extending the rule of law.
EP: Well, within that context of rule of law, I’d like to turn it now to your involvement in
civil rights activities here in North Carolina. I’m speaking specifically of the Junius
Scales case [Scales v. US, 1960], and the Speaker Ban Law of 1963. I was wondering if
you could discuss each in terms of what were the issues and your involvement in these
issues.
MS: Well, they’re different cases, of course. Basically, I’m convinced that to protect and
defend the Constitution is the most conservative issue, most conservative posture that one
can take, because what you’re trying to do is conserve values and conserve procedures
for protecting values.
In the Scales case, of course, that was a, a criminal charge, a very serious one,
against a man from Greensboro who had grown up here in the most affluent
circumstances. His family, his father in particular, had been a very big leader in the First
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Presbyterian Church and in the development of Irving Park. The young man’s name was
Irving Scales, same name as the park where there were the most fashionable houses in
Greensboro are located.
His father had also developed Starmount and Hamilton Lakes [communities] and
was the principal promoter of the Pilot Life Insurance Company. Of course, during the
Depression, many of those ventures fell on hard times, and the family had moved to
Carrboro [North Carolina]. His father had retired. And Scales grew up in his college days
in, in Carrboro and was an open member of the Communist Party and was the chairman
as the, you know, publicized as the chairman of the Communist Party in North
Carolina/South Carolina. There were a lot of letters to the editors of the North Carolina
newspapers signing his name that way.
Well, in the mid-fifties, the Justice Department brought a number of prosecutions
there. The big Communist case, which was against [Eugene] Dennis and others who were
said to have been the top officers in the party. And they were charged with organizing a
party to advocate violent overthrow of the government of the United States and of
advocating overthrow.
However, there was another provision of the Smith Act, which was an act of
Congress passed in about 1940 which made it a crime to be a member of a group that
advocated violent overthrow. And no one had been tried under the membership clause.
And Scales was indicted for being a member of the Communist Party, the charge being
that that was a group which advocated violent overthrow of the government.
And it raised a very interesting constitutional question, because he was not
charged with advocating violent overthrow. He was not charged with organizing a party
to advocate violent overthrow. He was charged with being a member of a group that
advocated violent overthrow.
And he was tried in Greensboro. And in the first trial, which lasted about two
weeks, he was defended by a lawyer from Washington named David Rein. And I was not
in that case in any way. Like everybody else, I read about it in the paper. And he was
convicted by a jury and sentenced to, I believe, to six years in prison.
And he appealed the case. And when it reached the Supreme Court, the
government confessed error and asked that it be returned. And the error that the
government confessed was that it had not permitted David Rein, Scales’ attorney, to see
the FBI reports made by FBI agents who had been working as informers and who had
supplied information to the government used in the trial. Some of these people testified in
the trial, one in particular, a man who is now a lawyer in Charlotte, named Ralph Clontz.
So the case came back in late ’57, I guess it was, early ’58. And the question was,
would the government try him again? And at one point it looked like they wouldn’t. But
then the government decided they would prosecute Scales again for being a member of a
group that vio[lently]--that advocated, or was said to advocate violent overthrow of the
government.
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And Scales’ lawyer in the Supreme Court had been Telford Taylor, who had been
our chief [United States] prosecutor at Nuremberg, a very fine constitutional lawyer. And
Scales was looking for some local counsel, because Taylor had never tried a jury case,
and he thought this would be tried to a jury. So I was asked if I would appear with
Telford Taylor in the trial of the case in the U.S. District Court in Greensboro. And I
agreed to do so, and I made my arrangements. I talked to Scales and I talked to his
mother. And just--we reached an agreement about fees, and it was a regular case. It was
not an elaborate fee, but it was a substantial one, and Taylor and I were to divide it.
And then we got started. And I spent a month, I guess, trying to read an enormous
mass of materials, because apparently the government’s theory was that it could prove the
nature of the Communist Party and that Scales had already admitted being an officer and
a member of it, so once they could prove the nature of the party, then they thought they
would be able to convict him.
Our argument proffers that the charge did not rise to the dignity of a crime,
because it didn’t charge him with doing anything. It charged him with believing or
knowing. And as one of the fourteenth century cases says, “No man should be convicted
of what he thinks, because not even the devil knows what a man thinks,” you know.
That’s one of the earliest cases we cited. And incidentally, that quotation appeared in the
Supreme Court opinion.
So we fou[ght]--argued from the beginning that the statute was faulty, because it
did not define a crime within the constitutional limits of the authority of Congress. And
then we started in with the trial, and the trial lasted three weeks or more. And the first ten
days the defendant’s name, Scales’ name, wasn’t mentioned. All of the evidence was
about what happened many years ago in Seattle or Cincinnati or New York or some place
else. Many people were mentioned as prominent members of the Communist Party who
had believed or said different things, many of them when Scales was a mere child.
I kept thinking that if you were to be tried, for example, to be a member of a
Methodist church, and they had evidence used against you that various bishops advocated
violent overthrow of the United States government, namely they supported the
Confederacy against the United States in the Civil War, you’d be up against a somewhat
similar problem, because you were dealing with evidence about events, about an
organization long ago and far away that did not really zero-in on the defendant Scales.
But then the government began to shift the case, and they brought Clontz forward.
And Clontz--the lawyer from Charlotte--had been a student at Duke. And he had sent a
postcard to Scales in Carrboro and said he’d like to learn more about the Communist
Party. Scales sent him a shoebox full of pamphlets and invited him to come have supper.
And Clontz testified that he went to have supper, and it was either on that first meeting
with Scales or the second one that he quoted Scales as saying that, “Force was the only
answer,” in which--
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[End of Tape 1, Side A--Begin Tape 1, Side B]
MS: “--force was the only answer,” in which Clontz understood to mean that the only way
Communism was going to be, become the system or the government of the United States
was through force. And that was one of the pieces of evidence against Scales. Our
argument to the court was that that was, at best, some kind of prediction, you know, like
someday California’s going to fall into the sea--which it might, but it’s hardly advocating
that, or at any particular time.
And then Clontz testified that Scales had offered to send him as a student to some
school in New York, and Clontz was working for the FBI all this time. And Clontz
accepted the invitation and went to New York. And he would come back occasionally to
Carrboro and tell Scales what he had been taught. He kept his notebook. So the
government was using Clontz as a conduit to prove that Scales not only was an admitted
member of the Communist Party, but that he was getting coached every week or two or
every month or two by Clontz as to what Clontz was being taught at some school in New
York. And that, I suppose, was a good bit of the case against Scales.
There were one or two other episodes. Some physics teacher said that he went to a
rally at Walnut Cove [North Carolina], in which they had a birthday cake with a red star
on it. And that while they were having their recess in some kind of general discussion,
Scales said that if you were ever in a picket line and somebody attacked you and you had
nothing but a sharp pencil to defend yourself, if you would jab the pencil right here in the
little hole in your neck--in the person’s neck that was attacking you--that you could, you
could really hurt him or even kill him.
And the papers came out the next day, “Communists Teach Killing,” which was a
little bit of a stretch by the newspaper headline-writers, because they’d indicated that
Scales was teaching that you could overthrow the United States Government with
pencils, which is hardly believable.
At any rate, the case went to the jury and the jury stayed out about two hours and
found him guilty of a, of a crime of being a knowing member of a group which advocated
violent overthrow. And I remember at both appeals--that is at the Court of Appeals and at
the Supreme Court--they would sort of err on the part of the court.
It’s, you know, how, why do we have this case? Because everybody knows the
Communist Party advocates violent overthrow. Why do we have to prove that? And
secondly, the man admits he is a Communist. Why do you have to have a trial about it?
Well, of course, the Supreme Court said you had to have a trial, I suppose, and they
affirmed the conviction five to four. But no one else has since been tried under the
membership clause.
EP: And you also helped argue with--for the Supreme Court?
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MS: Yes, I helped on the brief and was there. The actual oral argument was handled by
Taylor. And I remember that on the morning of the argument, he said if we can get
[Felix] Frankfurter on our side, we’ll win the case. And Frankfurter is going to ask about
a case that came up at the end World War--oh, at the end of, between World War I and
World War II--called Whitney against California [Whitney v. California, 1927].
So we went over to the Supreme Court Library and took a look at that case again.
And sure enough, Frankfurter asked a lot of questions about the Whitney Case. And
Frankfurter decided against us, and we lost five to four. If he had been with us, we
wouldn’t have won.
EP: That sounds like a very close decision, so apparently--
MS: Well, the closeness was on whether or not there was a crime charge. You know it’s the
most unusual thing to charge a person not with doing something, but with being
something, a sort of status offense. And for whatever reason, whether it’s the difficulty of
proof or the cost of proof, the department--or the doubts about the wisdom of it--the
Justice Department really never has tried anymore cases on that theory.
EP: Do you think this is part of the hysteria against Communism that produced the McCarthy
Era and was a temporary aberration?
MS: Well, I’m sure it was a part of it. It was very easy to get a lot of people excited about
what was thought to be a network of evil spies that were going to commit treason and
overthrow the government. Scales’ evidence, although the government spent a lot of
money and produced a lot of paperwork, really didn’t show many people involved.
My recollection, as far as North Carolina, was just a pitiful number of folks. And
the membership fee was fifty cents, and Scales paid the fifty cents many times to get
people to be willing to say that they would be a member. And at one point they passed
the hat to see if they couldn’t get a little money collected for something, and one of the
contributors was Ralph Clontz himself, who was the FBI informer. And I asked him on
cross examination if he put in a reimbursement bid and he said he did. So the government
itself was reimbursing the people who were putting the money into this collection plate.
It had a sort of an unreal atmosphere about it. I remember one woman who
testified against Clontz--I mean against Scales--didn’t really know Scales, but she was
testifying about a Communist underground, that she had gone underground. And so she
was asked on cross examination what she did. Well, she went to a rooming house and
lived under an assumed name. Well, okay. What did you actually do during the period
that you were living under the assumed name? Well, she was just waiting until she could
be of some service of whatever. How long did you wait? Weeks and weeks and weeks.
What happened to your family? Well, she’d already left her husband and I think she was
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looking for a reason to go. Well, did you do anything during the time that you were
underground? And she said, “Yes.” And we said, “What?” And she said she knitted a--
she’d crocheted a bedspread.
I mean you get a sort of un[real]--I remember that day Taylor said to me or I said
to him, “Let’s go out and feel a tree.” It was a very unreal experience.
EP: In connection with--moving on, if I may--the Speaker Ban Law of 1963 also dealt with
Communists, specifically Communist speakers on state supported institutions. Could you
discuss what issues were involved there?
MS: Yeah. I said that was a, that was a different case, and it was an entirely different issue it
seems to me. Incidentally, last Friday night I went to the performance of the Leningrad
Symphony and they got a long, long standing ovation. The crowd demanded encore. And
then they went over to Elliot Hall [at The University of North Carolina at Greensboro,
UNCG] and had a little reception, and the conductor made a little speech and it was
translated. And the mayor of Greensboro, Jim Melvin, made a little speech and welcomed
the Leningrad Symphony. Eight years ago that would have been illegal in North Carolina,
because of the Speaker Ban Law.
The Speaker Ban Law was passed on the last day of the session of 1963. It was
during the month of a second wave of demonstrations on behalf of blacks to be given
service in the movies, and in the sit-down restaurants, and in the hotels and motels. And
there were demonstrations in most of the cities in North Carolina. The legislature was
meeting in Raleigh and got--a number of the members apparently got terribly upset about
the picketing and the demands for service at the cafeterias in Raleigh, and they hit some
of the motels in the Raleigh area.
At any rate, this bill was introduced on the next to the last day, and a motion was
made to suspend the rule so that it could be acted on and read three times in each house
without going through committee and without going through the usual rules which would
allow--would give more time for consideration. And the bill said that no person could be
allowed to speak on any campus of any university or college financed by the state who
was either a member--a known Communist, or a person known to have advocated violent
overthrow of the government, or who had pled the Fifth Amendment in any security
hearing. Those were the three classes. And if a person fell with any of those classes then
he was banned or barred from speaking on any campus.
Well, the president of the university and the chancellor and the other officers from
the different parts of the university didn’t know about it until it was too late. The bill was
a law. And of course, it raised a furor in the state. There was a lot of debate. People were
debating, you know, how the state had no business furnishing a platform for these kinds
of people to speak. And others were saying that this violated North Carolina’s finest and
earliest tradition of the open forum, that schools of all places were places where different
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ideas ought to be discussed, and if we were afraid to listen then we were afraid to be
Americans, and that we were no longer the land of the brave and the home of the free--
the land of the free and the home of the brave.
Any rate, there was so much discussion that a special session of the legislature
was--no, first there was the commission. Charlie Myers from Burlington Industries in
Greensboro was on the commission. Archie Davis [Greensboro architect] was on the
commission. Robert Morgan, now the United States Senator, was on the commission.
[inaudible] Medford, the father of Jim Medford, the lawyer in Greensboro, the district
attorney of the Western District of North Carolina, was on the commission.
And the commission met and it was a highly charged atmosphere. “Don’t change
the law, it’s a good law.” Others were saying, “We should repeal it, it’s a bad law.” And
the commission finally recommended that the legislature not change the ban as such and
not change the clarifications, but leave it to the chancellors of each campus to decide
what exceptions could be made. That was about the way it was phrased.
And the legislature met in a special session in December 1965, I believe, and
reenacted the commission’s recommendation. And it had kept the ban for those three
classes of speakers unless they’d gotten some special permission from the chancellors on
each campus. Well, in January of 1966, students, of Chapel Hill in particular, decided
that they would invite Frank Wilkinson, who had pled the Fifth Amendment in some
security matter or in some case and now--and then a security battle--he had pled the Fifth
Amendment. So he was clearly one in one of the classes. And they were going to invite
Herbert Aptheker, who was the editor of a magazine that was avowedly an expression of
the Communist point-of-view from a theoretical economic standpoint. He was their most
literate editor, many people thought, and a known Communist, so that he was in another
class of the three classes of cabined speakers.
And these students of Chapel Hill included the president of the student body, the
head of the paper, the president of the Carolina Forum, the Carolina Political Union, the
president of the YMCA, a young lady who was president of the YWCA. Altogether there
were about six campus leaders. And they filed their regular request for space to be
assigned that wouldn’t conflict with some other speech. They went through the regular
process at Chapel Hill for notifying those who maintained the buildings that there would
be a program.
And incidentally the same two speakers were invited to come to Duke at the same
time, but on the next night, in each case. So that gave an interesting parallel. You had
speakers coming to Chapel Hill, and speeches were scheduled, as I remember, for
sometime in February or early March.
Well, the chancellor, as I recall it, did not disapprove. He was willing to let them
go. He may have made a suggestion or two about there being a panel so that there could
be some criticism or some critique of the speeches. But then, as I recall it, the governor
called the trustees together, or the trustees were having a regular meeting, and he said,
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“This won’t do. The people of the state are not ready for this. We just had a session of
legislature to modify the law slightly, and now these students at Chapel Hill are really
throwing down the gauntlet and daring the, the chancellors to deny them the right to bring
these speakers to Chapel Hill.”
Somewhere in the course of it the chancellor resigned and a new chancellor was
appointed, [Joseph] Carlyle Sitterson. The speakers were told they shouldn’t come, but
they came anyway, and in each instance--well, the campus police, I know in one instance,
ushered--told the man he couldn’t speak and took him off the campus. And he spoke on
the street in Chapel Hill outside the wall. And he had, you know, one or two thousand,
maybe more, students down there in the streets listening to him speak.
Reason why I say that’s important is because the same speaker came back a few
years later, after we had our lawsuit and the law had been declared unconstitutional.
Nobody even knew he came. He had a very small attendance. But the controversy about
his speech really rolled the crowd out.
Okay, the other one was also ushered off of campus, and he spoke in a local
church. So both speakers were denied the right to speak, and the students who invited
them were denied the right to hear, unless they went somewhere else, unless they went to
the church or went--left the campus.
And these students came to me and asked me if I would file a lawsuit to have the
law declared unconstitutional, because it denied the speakers the right to speak and it
denied them the right to listen and it treated them differently--both speakers and the
students--from other speakers and the same groups of students who would be hearing all
sorts of speakers on other subjects. In other words, here were three classes of speakers
and three classes of listeners to speakers who were singled out and cabined and set aside
and required to jump through the hoops and do other things that other students and other
speakers were not required to do.
So we filed a lawsuit in the name of these students and the speakers in the United
State District Court for the Middle District of North Carolina. Chapel Hill is in the
Middle District. We filed it here in Greensboro. And it took a year and a half or two years
for the evidence to be developed and presented to the court. We had a number of motions
in the meantime. I know the state took the position that the students had no standing,
because all they were were listeners and the speaker ban was to ban speakers. If you
weren’t a speaker, then you didn’t have any standing to raise the question. Of course, we
came back and said that listening is just as important as speaking, and you can’t--there’s
no speech unless there’s a hearer, and there’s no hearer unless there’s a speech. And I
think we got over that hurdle. But that’s an illustration.
There were two or three other, other motions. I know the state took the position
that the federal court sought not to consider whether this was a violation of the United
States Constitution, but ought to leave it to the state courts and the state. And until the
15
state courts interpreted the act, the federal court should abstain. The federal court did not
abstain.
And I know when the panel of three judges were assigned, there was a lot of
expressed disappointment among those advocates of the open forum idea. They thought
the panel was very tough. The chief judge was to be [Clement F.] Haynsworth, later to be
nominated by Nixon to the Supreme Court. The nomination was defeated in the senate.
But he was chief judge of the court circuit and he was going to be the chief judge of the
three judge panel. The other two judges were Judge Stanley from Greensboro and Judge
Butler from down in Clemmons, North Carolina. And people said, “That’s a tough panel.
We’ll never win. Too bad we didn’t get [Jesse Spencer] Bell or [James Braxton] Craven.”
But both of them, for one reason or another, were not assigned, and one of them had
spoken out on the subject and said he was disqualified.
So we went into the trial before these three tough judges. Well, I was, I was so
pleased that the opinion was unanimous that the law was invalid. And the state never
appealed. So we won the case. And to this day, to my knowledge, there has been no one
upset. And there’s been a little debate about it and the whole thing, which seemed like a
terrible burden and albatross on everybody had been lifted as a result of that court
decision.
And I’ll say this. During the years 1966 and ’67, while the case was pending, all
the politicians could say with grace and aptness [was] that they shouldn’t comment,
because the case was in the courts. And that let them off the hook even, even before the
decision. The thing was taken out of the political arena.
EP: I was wondering if, Senator Smith, if you could summarize for us, in the few minutes that
we have left, the lasting result of these two cases, theoretically and perhaps specifically
for North Carolina.
MS: Well, as far as the Speaker Ban case is concerned--of course, you always have to be
vigilant about efforts to throttle a speech. There are many people who want to do good,
who think that they can just shut up other people and good will follow. The argument that
I thought was most effective--and I tried to close the argument to the federal court in the
Speaker Ban case--was that in North Carolina, going way, way back, and certainly going
back to the turn of this century, we had a tradition of an open forum, and particularly at
Chapel Hill. And that is that the key to learning was to listen, and to listen to many
different points of views. And that what we were trying, on behalf of the student leaders
in the Speaker Ban case, was not to copy something from the University of California or
from Harvard or Yale or Columbia or anywhere else. We were trying to maintain the
tradition which had been a North Carolina tradition of the open forum.
And I cited to the court the instance when shortly after the turn of the century,
when the United States Senator from North Carolina was named Marion Butler--I was
16
not inadvertent to the fact that Judge Butler was in the same family. But Butler, Marion
Butler, the senator of North Carolina, had been a Democrat, and a Republican, and a
Populist or a Fusionist, which was a kind of a combination of the Populist and the
Republican. And he was very unpopular after the election of 1900, but he was still the
United States Senator on a six year term.
And he was invited to Chapel Hill to speak. And the president of the university
and a number of others said that the students had made a mistake and that he should not
come and Senator Butler ought to be dis-invited. And the student leaders said absolutely
not. He’s coming and we’re going to hear him. And he did come and they did hear him.
And the leaders of the students were at that time Walter Stacey, who later became Chief
Justice of North Carolina; John J. Parker, who later became Chief Judge of the Fourth
Circuit and held the very chair that Haynsworth was sitting in at this trial; and Frank
Graham, who was later the president of the university.
And my argument was that the students whom I represented in this case were in
that tradition, and that they had come to court because they believed in the Constitution
and they believed in the law and they believed in the tradition of North Carolina. And
they were not out committing violent acts or lying down in the street or, or what do you
call it--trashing the place. They were appealing to the law and they were relying on the
law. And I thought the law would protect them, which it did, and we won the case.
Now I think if that point of view can be maintained, North Carolina will continue
to be an open and progressive place and will fulfill its best possibility. That’s why the
case was symbolic to me. And those who wanted to practice repression were those on the
other side.
And I’ll never forget that the chancellor and the president of the university
seemed very relieved when the case was decided the way it was. They were in--on the
spot. And some of my closest friends came to me and said, you know, “You have sued
the university, and the university’s been good to you! Why do you want to sue the
university?” I said, “I want to help the university, because it’s got an albatross around its
neck, and the state has got an albatross around its neck. And it’s our duty to bring this to
the court’s attention and get rid of it, in the name of freeing the university.” And I have
never lost a moment’s sleep because we were on the right side and the open outcome was
good for the state and a very conservative one.
EP: Well, apparently that was born out by the fact that--was it not at the next session there
was--or a special session was called in to refute the Speaker Ban law, was it not?
MS: No. The ban was declared unconstitutional by the court, and that took it off the book.
EP: Oh, I see.
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MS: No, there was no legislative action. And that’s one reason why we have the three
branches of government. We got the court with the basic constitution to try to protect us
against momentary excesses of the, of the legislative branch.
EP: Well, Senator Smith, I want to thank you for coming and talking to us, and discussing
your participation in these very momentous events not only for the local history of
Greensboro but--and North Carolina, but nationally as a whole.
MS: Well, I’ve enjoyed being here. There’s a lot of other things. I had to make a living all
during this time and Greensboro, as I’ve said, has been mighty good to me in that
connection and others, too. And I’ve appreciated the chance to run for office in more
recent years and to be in the legislature. You know, I did not run for anything until after
the decision of the Speaker Ban case.
EP: I hope that we can get to discuss that at a later time.
MS: Thanks.
EP: This has been a segment of the Greensboro Public Library Oral History Project. It was
filmed in the library on March 7, 1977.
[End of Interview]