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  The exceptions noted earlier were Emmet Lavery and Bertolt Brecht, both of whom were apparently expected by the Committee to show the same belligerence and lack of cooperation as the rest. Both were assumed to be Communists by Thomas and his investigators. Lavery, who was president of the Screen Writers Guild, had been attacked by a number of “friendly” witnesses. One of them, Morrie Ryskind, had told the Committee that under Lavery’s leadership the Guild “was under Communist domination”; another, Rupert Hughes, called him “a Communist masquerading as a Catholic.” Emmet Lavery was interested purely in preserving the Screen Writers Guild and making sure that, even if it meant sacrificing a few members—or more than a few—the Guild would survive the assault of the Committee. The tactics of an Irish politician. As the lawyer he was, Lavery gave exemplary testimony before the Committee—direct, cogent, and informed. He denied being a Communist. He refused to engage in speculation, to repeat hearsay, or to blacken the names of those who had already testified to save his own neck. But he was chiefly interested not in saving himself but in preserving the integrity of the Guild: “Mr. Stripling, they do not have control of the Guild, and, if they did have control of the Guild, I would have stayed home long ago.” He did not sell out the Ten before the Committee; he did that, unfortunately, later on back in Hollywood.

  The last witness to testify during that round of hearings was the German playwright Bertolt Brecht. At the time he appeared he had been in the United States over six years, had taken out his first citizenship papers, and had declared his intention to remain permanently in the country. During that period in Hollywood he had had his name on the screen only once—an original story credit for the film Hangmen Also Die—although he had worked on a number of other movie projects. These years were fruitful for him, however, in his career as a playwright. He wrote a number of plays, revised others, and saw one of his finest, The Life of Galileo, mounted in an excellent English-language production which starred Charles Laughton in the title role. Brecht did indulge in a good deal of double-talk with Stripling and Chairman Thomas, the point of which was to make him seem a good deal more cooperative and less radical than he really was. On one point, however, he gave in completely:

  Mr. Stripling: Now, I will repeat the original question. Are you now or have you ever been a member of the Communist Party of any country?

  Mr. Brecht: Mr. Chairman, I have heard my colleagues when they considered this question not as proper, but I am a guest in this country and do not want to enter into any legal arguments, so I will answer your question fully as well as I can. I was not a member, or am not a member, of any Communist Party.

  There is, incidentally, no reason to believe that Brecht was telling anything but the absolute truth when he said this; no proof has ever been offered to the contrary, and when he subsequently returned to East Germany, Brecht certainly did not behave as a fully committed Party member might have been expected to.

  That last day of the hearings, on which Bertolt Brecht appeared before the Committee, was October 30, 1947. The Ten who had refused to respond to the question put to each of them regarding their membership in the Communist Party had all been cited for contempt of Congress. All would eventually serve prison terms on the charge. But a harder punishment was being prepared for them by leaders of the motion picture industry. Major producers and studio executives met late in November at the Waldorf-Astoria Hotel in New York to discuss the embarrassment to the industry caused by the Hollywood Ten. They conferred for two days. And while there is no record of what was said inside their meetings, the document that came out of them, the notorious Waldorf Agreement, said loud and clear that people like Dalton Trumbo and his fellow “unfriendlies” were, in effect, no longer employable in the motion picture industry.

  There is some irony in the fact that Eric Johnston, head of the Motion Picture Association of America, was chosen to announce the Waldorf Agreement to the world. Irony because Johnston had given repeated assurances to the press, to the “unfriendlies,” and to their counsel, that the motion picture industry and Johnston himself would stick behind them all the way. Even when J. Parnell Thomas had announced to the press that movie producers had agreed to establish a blacklist, Eric Johnston came around (as reported in Alvah Bessie’s Inquisition in Eden) to reassure the “unfriendlies.” He declared: “That report is nonsense! As long as I live, I will never be a party to anything as un-American as a blacklist, and any statement purporting to quote me as agreeing to a blacklist is a libel upon me as a good American.” Evidently he meant that, at least when he said it. However, like most of the industry’s leaders, he was intimidated by the Committee. All were subjected to pressure, as well, from the bankers and brokers on whom the studios and independent producers depended for their flow of production capital. The industry was told to clean house or to expect grave consequences.

  On November 26, 1947, Eric Johnston read the movie industry’s pledge to the press. The heart of it was this:

  We will forthwith discharge or suspend without compensation those in our employ and we will not re-employ any of the ten until such time as he is acquitted or has purged himself of contempt and declares under oath that he is not a Communist.

  On the broader issue of alleged subversive and disloyal elements in Hollywood, our members are likewise prepared to take positive action.

  We will not knowingly employ a Communist or a member of any party or group which advocates the overthrow of the Government of the United States by force or by any illegal or unconstitutional methods.

  Whatever private protocols had been, or would be, put into effect, the Waldorf Agreement was the document which made the blacklist a public fact. They tried, in the wording of the document, to put the best possible face on what was to be a witch hunt. They promised not to be “swayed by hysteria or intimidation from any source”—while intimidation and hysteria were what had occasioned the meeting and the Agreement in the first place. They appealed hypocritically to “the Hollywood talent guilds to work with us to eliminate any subversives; to protect the innocent; and to safeguard free speech and a free screen wherever threatened.”

  When you were with Robert W. Kenny you had the feeling that you were in the presence of a historical personage. The public offices that he had held were not so high that they would have conferred any degree of grandeur on the man. He had been a state senator, the attorney general of the state of California, and he then a judge of the Superior Court of the county of Los Angeles. Still, a quality of something close to greatness clung to the man. He conveyed the feeling that even if he himself might never quite have achieved all that he might have wished, at least he had influenced those who in turn had influenced history. It was this quality that Carey McWilliams touched upon in his obituary tribute, “The Education of Earl Warren,” in the Nation, when he credited Kenny and Pat Brown with initiating the long process of liberalization that reshaped Warren from the conservative, small-time politician who started out in California to his position of leadership in the most liberal Supreme Court in American history.

  Physically, Robert Kenny is not a very prepossessing figure when I first see him. He has a lame right side and moves with a little difficulty around his courtroom on the sixth floor of the County Building in Los Angeles. But he is very much in command, and having heard both sides in the civil case that is before him and indicating to me with a nod from the bench that he is aware of our appointment, he does not hesitate to call a recess. He makes for his chambers, and I follow.

  “Just let me get out of this black muumuu and into civilian clothes,” he says, “then we can talk as long as you want to.” That he does, again with some difficulty, for it becomes a matter of his left arm doing the work of both left and right. His resigned manner tells me that he has been through it all thousands of times before and that help would not be welcome if it were offered.

  He settles down in the sofa opposite me and we talk. “I got into it, I suppose, as attorney for the Screen Writers Guild,” he t
ells me. “My partner, Morris Cohen, handled most of the Guild work. When we started out I was in the State Senate and then I became attorney general. As far as Trumbo was concerned, I only got to know him after the subpoenas went out in October 1947. We had less than thirty days to prepare for the hearings and a mountain of work to do beforehand. Quite reasonably, they wanted to be told what to say when they got there, and there were meetings on that. But there were a hell of a lot of other things to do. We needed the time, for one thing, to get a PR campaign of our own going, this Committee for the First Amendment thing. And there were also just details of the mundane kind, like buying transportation for us all, making reservations, deciding whether we traveled by train or plane, or what. I remember Gordon Kahn, one of the original nineteen, had the last word there. ‘We’re going by tumbril,’ he said. I think that shows both the seriousness with which they looked at the situation and the way they kept their humor in spite of it.”

  “How detailed were these strategy sessions? Was it Trumbo’s idea that all of them should challenge the Committee’s right to question them—and in effect plead the First Amendment?”

  “Not exactly.” Then Judge Kenny explains: “I was playing it pretty cautiously because the Committee’s technique had taken a nasty turn in the case of Dr. Edward K. Barsky and the Joint Anti-Fascist Refugee Committee. He was asked to give them his membership lists. He refused, and they tried to develop a case of conspiracy which would have meant a sentence of years, not months. Ultimately what we—I and the other attorneys involved—did was to put the options before them. We were determined that they would arrive at their own decisions of conduct before the Committee. That’s really what happened, too. The decisions were their own. And it was not a collective decision, though it came after intermember deliberation.

  “Nevertheless, there was a lot of animosity between the Committee and Committee staff on the one hand, and us on the other. Thomas tried to get me for conspiracy. I guess that shows pretty clearly in the transcript. What we actually tried to do was treat the hearing as though it were a court trial—and Stripling and Thomas as though they were officers of a kangaroo court, which of course they were.”

  Would it be accurate to say they pleaded the First Amendment, then?

  “Our position in Washington was that we’re not refusing to answer. We had just not completed our reasons for providing the answers we were giving them.”

  At this point Judge Kenny pauses, grins, and shakes his head. “We had more angels hopping around on the heads of pins there, didn’t we? What difference does it make what amendment you use for your defense as long as you keep out of jail? And we didn’t even manage to do that. All we managed to do was put the lawyers’ children through college with all that litigation. No, that’s not all really. Because after the Ten went to jail, we had a jail-proof defense in the Fifth Amendment. People knew they had to use it then, and they used it. In effect, we bought time for hundreds of people.

  “Before the Ten actually went off to the pokey, nobody believed anybody was going to jail. Even the judges who handed out the sentences thought this was nothing more than a test case. Contempt of Congress—it’s just a high-grade misdemeanor, anyway—a year and a thousand maximum. Nobody had served time on the charge since the 1920s. That was when Harry Sinclair of Sinclair Oil did thirty days for his behavior during the congressional investigation of the Teapot Dome affair.”

  Since, in a way, the Ten did just about what they set out to do before the Committee, when was it that things started to go wrong?

  “Well, I’d say we were pretty successful until the Waldorf Agreement, when the major producers got up the courage to screw the Ten and everybody else. Eric Johnston told me before the Waldorf Agreement that there would never be anything as un-American as a blacklist advocated by the producers. Well, we saw what happened then. The Ten were fired and we brought suit immediately on all the contracts. What really killed us, though, what put an end to it all, was when the Supreme Court turned down our petition of certiorari and refused to hear the case. That was 1949. That ended it. The boys went to jail. And though they were all pretty complimentary about the prisons and the lack of any sort of special treatment they received, favorable or unfavorable—it was still jail, time out of their lives, a blot on their record, a shameful injustice.”

  “Well,” I ask, “if the Waldorf Agreement was the beginning of the end, what about the blacklist that came out of it? Was it legal?”

  “Of course not!” Judge Kenny seems irritated, not so much by the question as by the memories that it brought up of all the angry, fruitless arguments he had made decades before. This was territory he had been over again and again and again.

  “Look,” he explains patiently, “the blacklist was a violation of the Sherman Act. It’s simple. If A hires B to do work for him, then it’s no damned business of C’s whether B has been hired or not. If C is allowed to influence A in hiring—or in firing—then it is a violation of the Anti-Trust Act.”

  He sighs, lapses into silence as though suddenly exhausted by the effort. He is not a strong man. Aged seventy-two, he looks every year of it. Along with the memories of all the old battles, he bears scars from the wounds suffered in them. Judge Robert W. Kenny seems a very tired man.

  “So you see,” he begins again, gathering himself to sum up, “the issues involved in all this were important. They were real issues. I was proud to be involved in it. I only wish it had turned out better for the Ten.”

  I ask Judge Kenny about Earl Warren: “You were on the opposite sides of most battles during your years in California politics, yet in the end were much closer philosophically than when you both started out.”

  He agrees: “That’s right. You can never figure out the voters in this state. The same voters who elected Earl Warren attorney general elected me state senator. And the same voters that elected me attorney general elected him governor in 1942. I ran against him in 1946, and to tell you the truth, I didn’t lay a glove on him. He cross-filed—you could do that here then—and got both parties’ nominations.” Kenny smiles ruefully, time’s triumph over chagrin.

  I ask, on a gamble, just how he thinks the Ten’s appeal might have fared before the Warren Court.

  “Oh, I don’t think there’s any question of it. It takes four votes to get a petition of certiorari granted, and I think there were certainly four justices in that court who would want to have the case heard. Earl would have voted for certiorari because it involved an important constitutional question. And that was his strength as a justice—he never ducked the important ones. So we would have gotten before the Court. We would have argued it, and we would have won.”

  Why?

  “Because we were right, dammit.”

  Time did not stand still for Dalton Trumbo during this period, although it may have seemed to him and to his family as though it had. When he became one of the Hollywood Ten, his life was changed profoundly. Trumbo’s public life consumed his private life almost completely. The telegrams of congratulation poured in: “To Dalton Trumbo in support,” “Your Washington performance and that of others was most gladdening,” and so on. There were poison-pen letters, as well. And Dalton Trumbo concentrated, to the exclusion of almost all else, on the role in which he had been cast.

  So much so that it is necessary to look beyond him for personal responses to the situation. Trumbo was what the record indicates. He was totally the man quoted in the Congressional Record. Cleo and the children had nothing to say about that moment. They remained for the most part up at the Lazy-T, where they were out of reach of the newspapers and the wire services. They just listened to the radio news in which the progress of the hearings was followed closely. They listened and waited for Trumbo to come home.

  His sisters and his mother listened, too. And his mother read the Christian Science Monitor. True to its liberal viewpoint, the newspaper offered objective accounts of the day-to-day events: “Like Mr. Lawson, Mr. Trumbo argued that a congressional c
ommittee has no right to inquire into a man’s political affiliation, thereby presenting a point that probably will go to the Supreme Court. Whatever Mr. Trumbo’s own connections he appealed for protection in this instance to those rights of free expression and belief and to those civil liberties, which are noticeable by their absence in Communist countries.” And in its editorial pages, too, the Monitor gave the “unfriendlies” its qualified support.

  What conclusions did Maud Trumbo draw from what she read in her newspaper about her son and what she herself knew of him? This is how Elizabeth Baskerville, Dalton’s sister, remembered it: “I think Mama was outraged because she felt her son was right. He may have fallen in with bad companions, but she felt he was right. And really, we all supported him. The prospect of it must have been very threatening to her because as she was hearing Dalton testify she must have had the feeling that all her security—that was Dalton—was going down the drain.”

  And how did Trumbo view the future? As one of endless litigation, probably. He returned to the West Coast with the contempt of Congress citation over his head and with the feeling that time was running out for him. He was at that time engaged with producer Sam Zimbalist in a film project for Metro, Angel’s Flight, that was intended to star Clark Gable. It proved to be Trumbo’s last assignment at Metro-Goldwyn-Mayer; since it was never produced, nobody seemed to recall much about it. He reported to the M-G-M lot and had a couple of conferences on the script, then went off to join Cleo and the children to work on it up at the Lazy-T. He had always had a great affection for Zimbalist, whom he had known for years and with whom he had worked on the best of his M-G-M films, Thirty Seconds Over Tokyo. He felt he had better get this one done in a hurry for Sam.

  But time ran out. On Thanksgiving Day, 1947, the producer brought him the news. It would have been impossible for Zimbalist to call. In spite of the many improvements Trumbo had made at the Lazy-T—and it was now only a little less than a palace nestled up in the Ventura Mountains—there was still no telephone; after all, the idea in moving up there in the first place had been to get away from the telephone, to make him inaccessible. But Sam Zimbalist had the kind of news he would have felt obliged to deliver in person, anyway. Trumbo recalled: “I was cooking mince pies in the kitchen and Sam came in and said, ‘It’s all over, batten down the hatches, it’s going to happen. All of the Ten are going to be blacklisted.’” He offered his sympathy and his promise to help, personally, in any way he could. But there was very little more to be said.