Herndon v. Lowry: 1937

By 1932 Herndon was in Atlanta, Georgia, forming an Unemployed Council there. Atlanta, like many other American cities, faced a political and financial crisis that year, as its public funds for relief ran out. The Fulton County Commission, which distributed money to needy Atlantans, was considering a tax raise. One commissioner, Walter Hendrix, stated that he believed the amount of suffering and starvation in the city had been overstated. When Herndon learned of this statement, he took it as a challenge and arranged a rally of unemployed people at the commission offices for the next day, June 30. Nearly a thousand workers, black and white, appeared at the commission offices. The startled commissioners immediately arranged to provide an emergency appropriation.

The incident worried Atlanta authorities. Suspecting Communist influence, Thethey put a watch on the post office box given as the council's address, and on July 11, when Herndon showed up to collect his mail, two detectives arrested him "on suspicion."

A search of Herndon's lodgings revealed a quantity of Communist material. Herndon made no effort to hide his affiliation. The Communist Party was not illegal in Georgia at that time, but prosecutor John H. Hudson decided to charge the young man with "insurrection"—a combined attempt to overthrow the state government—under a Reconstruction-era law which provided a maximum penalty of death. Hudson reasoned that the Communist Party advocated the overthrow of the existing government, and that therefore a member of the Communist Party was automatically guilty under the statute. He had already invoked this law against six Communists arrested in 1930. As it happened, however, Herndon's case came to trial before theirs, on January 16, 1933.