Communists and the Fourth Amendment

Although government activities against communists in the United States were most often associated with First and Fifth Amendment violations, communists were also victims of Fourth Amendment violations by federal, state, and local officials throughout the nineteenth and twentieth centuries. Many were warrantless searches. Others involved warrants illegally authorizing general or “ransack” searches.

The Communist Party of the United States of America (CPUSA) was formed in 1919. However, searches of the property of communists, communist sympathizers, and alleged communists date back at least to the first Red Scare following Chicago's Haymarket Riots in 1886, in which Chicago police ransacked offices and homes of suspected anarchists, socialists, and communists. Eight suspects stood trial, and seven were sentenced to death. The Illinois Supreme Court upheld their convictions. They appealed to the U.S. Supreme Court on Fourth Amendment grounds, but the Court ruled that no federal question was involved.

A second Red Scare occurred in the years immediately following the 1917 Russian Revolution. In 1919–1920, during hysteria about suspected Bolshevik activities, U.S. Attorney General A. Mitchell Palmer ordered warrantless raids on suspected communists. These, directed by his then-assistant, J. Edgar Hoover, resulted in the arrests of hundreds for alleged communist involvement. In response to the raids, a group of prominent lawyers, including Roscoe Pound and Felix Frankfurter, published a report “On the Illegal Practices of the United States Department of Justice” in which they gave accounts of warrantless raids, destruction of property, and other Fourth Amendment violations by order of the U.S. Department of Justice. Meanwhile, the New York Joint Legislative Committee Investigating Seditious Activities (the [Page 182]“Lusk Committee”) also authorized raids by 700 members of the New York Police Department (NYPD), resulting in seizures of massive amounts of literature and widespread arrests.

Throughout the twentieth century, congressional committees, most notably the House Committee to Investigate Un-American Activities (Dies Committee) and the House Un-American Activities Committee (HUAAC), worked closely with J. Edgar Hoover, the Federal Bureau of Investigation (FBI), and state and local law enforcement officials to expose alleged communists in the United States. Their activities included raids on headquarters of the CPUSA and related organizations to seize membership lists, financial records, pamphlets, and books and extensive wiretapping of CPUSA members' homes. They justified these actions on the basis that the goal of exposing communist activities outweighed the illegality of the tactics used. Hoover also made information and investigators available to Senator Joseph McCarthy (R-Wis.) during his campaign against alleged subversives in government.

Government officials gained much of their evidence against communists through informants or private investigators, considered exempt from Fourth Amendment restrictions. Also, the CPUSA destroyed documents or secretly shipped them to the Soviet Union. Otherwise, there might have been more high-profile Fourth Amendment CPUSA cases.

States and localities often took their cues from the federal government or worked in conjunction with federal agencies. In 1971, a case was filed against the NYPD by a coalition including the CPUSA and Communist Party of New York State in response to extensive and expanding surveillance activities. This resulted in a consent decree in 1985 placing strict limits on the NYPD's surveillance authority.

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