Liberty on Trial in America: Cases That Defined Freedom [8692]

We like to believe that the founding principle of the United States is liberty. “Give me liberty, or give me death!” Pat

896 120 13MB

English Pages 264 Year 2020-01

Report DMCA / Copyright


Polecaj historie

Liberty on Trial in America: Cases That Defined Freedom [8692]

Table of contents :
Professor Biography......Page 3
Course Scope......Page 7
Lecture 1—The Trial of Anne Hutchinson......Page 9
Puritans in Colonial New England......Page 10
Women’s Social and Religious Roles......Page 11
Banished and Imprisoned......Page 14
Lecture 2—The Trial of John Peter Zenger......Page 18
The War of the Newspapers......Page 19
Libel Law......Page 23
Jury Nullification......Page 25
Lecture 3—Two Slave Trials......Page 28
The Burns Trial......Page 29
The Celia Trial......Page 34
Lecture 4—The Trial of John Brown......Page 39
The Fight against Slavery......Page 40
Attack on Kansas......Page 42
The Harper’s Ferry Assault......Page 44
Arrest, Trial, and Execution......Page 47
Lecture 5—The Trial of Susan B. Anthony......Page 50
Registration and Vote......Page 51
Arrest......Page 54
Lecture Tour......Page 56
Trial and Sentence......Page 57
Lecture 6—The Trial of the Haymarket Eight......Page 61
Labor Tensions......Page 62
The Haymarket Riot......Page 63
Riot Aftermath......Page 65
The Haymarket Trial......Page 66
Lecture 7—The Trial of John T. Scopes......Page 71
The Anti-Evolution Law......Page 72
A Test Case......Page 73
The Fundamentalist Movement......Page 74
The Scopes Trial......Page 75
Lecture 8—The Sweet Trials, Race, and Self-Defense......Page 80
Rising Racial Tensions......Page 81
Assault on the Sweet Home......Page 82
Representation and Trial......Page 83
Retrial and Verdict......Page 86
Lecture 9—Jehovah’s Witnesses and Flag-Salute Cases......Page 89
Jehovah’s Witnesses......Page 90
Gobitis......Page 92
Barnette......Page 96
Lecture 10—Korematsu v. United States......Page 100
Japanese Americans after Pearl Harbor......Page 101
Korematsu’s Arrest and Trial......Page 103
Appeal and Supreme Court Decision......Page 106
Lecture 11—Segregation on Trial......Page 110
Charles Hamilton Houston’s Fight for Equality......Page 111
The Path to Overturning Plessy......Page 114
Gaines Reaches the Supreme Court......Page 116
The Fight, Continued......Page 118
Lecture 12—The Lenny Bruce Trials......Page 120
Bruce’s Obscene Comedy......Page 121
Bruce’s Obscenity Trial......Page 125
A New Type of Comedian......Page 128
Lecture 13—The Evolving Right to Marry......Page 130
Virginia Was Not for Lovers......Page 131
The Loving Trial......Page 133
Same-Sex Marriage......Page 137
Lecture 14—Wisconsin v. Yoder......Page 140
Compulsory Education......Page 141
Religious Freedom......Page 144
Lecture 15—Furman v. Georgia......Page 149
Crime and Punishment......Page 150
Cruel and Unusual Punishment......Page 151
The Death Penalty......Page 154
Lecture 16—The Trial of Daniel Ellsberg......Page 158
The Pentagon Papers......Page 159
Publishing the Papers......Page 162
Two Trials of Two Men......Page 165
Lecture 17—The Road to Roe v. Wade......Page 168
Mandatory Sterilization......Page 169
Contraceptive Use......Page 171
Abortion Restrictions......Page 173
Lecture 18—The Right to an Intimate Life......Page 178
Bowers v. Hardwick......Page 179
Lawrence v. Texas......Page 184
Lecture 19—The Ruby Ridge Trial......Page 187
Visions of Liberty in the Mountains......Page 188
The Standoff at Ruby Ridge......Page 191
The Weaver Trial......Page 193
Lecture 20—The Trials of Jack Kevorkian......Page 196
The Right to Die......Page 197
Assisted Suicide......Page 199
Euthanasia......Page 201
Lecture 21—Boy Scouts of America v. Dale......Page 205
Gay Rights......Page 206
The Right of Freedom of Association......Page 210
Lecture 22—Kelo v. City of New London......Page 215
Kelo’s Little Pink House......Page 216
Eminent Domain......Page 218
Public Use......Page 220
Lecture 23—The Citizens United Case......Page 224
Campaign Finance Laws......Page 225
Electioneering Communications......Page 227
Citizens United v. Federal Election Commission......Page 230
Lecture 24—Liberty for Nonhumans?......Page 235
The Nonhuman Rights Project......Page 236
Tommy the Chimpanzee......Page 237
Tommy’s Legal Journey......Page 241
Quiz......Page 245
Bibliography......Page 258
Image Credits......Page 264

Citation preview

Topic History

Subtopic Modern History

Liberty on Trial in America

Cases That Defined Freedom Course Guidebook Professor Douglas O. Linder

University of Missouri–Kansas City School of Law

4840 Westfields Boulevard | Suite 500 | Chantilly, Virginia | 20151‑2299 [phone] 1.800.832.2412 | [fax] 703.378.3819 | [web]



President & CEO Chief Financial Officer  SVP, Marketing VP, Marketing Sr. Director, Brand Marketing & Innovation VP, Product Development VP, General Counsel VP, Technology Services Sr. Director, Content Development Director, Business Operations & Planning Director of Creative



FARHAD HOSSAIN Publications Manager BLAKELY SWAIN Copyeditor KATHRYN DAGLEY Graphic Designer JESSICA MULLINS Proofreader ERIKA ROBERTS Publications Assistant VICTORIA CHIN Fact-Checkers JEN ROSENBERG WILLIAM DOMANSKI Transcript Editor & Fact-Checker


Copyright © The Teaching Company, 2020 Printed in the United States of America This book is in copyright. All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form, or by any means (electronic, mechanical, photocopying, recording, or otherwise), without the prior written permission of The Teaching Company.


Douglas O. Linder, JD Elmer Powell Peer Professor of Law University of Missouri–Kansas City School of Law

Douglas O. Linder is the Elmer Powell Peer Professor of Law at the University of Missouri–Kansas City School of Law. He received his JD from Stanford Law School. He has taught as a visiting professor at the University of Iowa College of Law and Indiana University School of Law. The subjects he teaches include famous trials, the American jury, constitutional law, First Amendment law, and legal professionalism. In addition to being named a UMKC Trustees Fellow, Professor Linder has received his law school’s highest teaching award (twice) and its highest publishing award (three times). For more than two decades, he has taught a seminar in famous trials using materials published on a website of his creation, Famous Trials ( The site is the internet’s largest and most visited collection of original writings, images, and primary documents relating to 79 (and counting) famous trials. First published in 1995, the website has been the subject of reviews in The New York Times and The Boston Globe. He is also the creator of one of the internet’s most visited sites on the subject of constitutional law, Exploring Constitutional Law ( conlaw/home.html). i


Professor Linder is the coauthor of two books, The Good Lawyer: Seeking Quality in the Practice of Law and The Happy Lawyer: Making a Good Life in the Law. He has served as a consultant or interviewee on numerous documentary film projects and theater projects involving historic trials. He has also appeared in televised documentaries about great trials produced by HISTORY®, AMC, PBS, Court TV, Fox, Discovery Networks, and A&E as well as Canadian and European production companies. Additionally, he has appeared in televised interviews about great trials on CBS, CNN, Fox News, and other cable networks. He has lectured or participated in panel discussions relating to various historic trials across the country, both at university campuses and professional gatherings. A former member of the Minnesota Bar, Professor Linder has published more than 30 law review articles, book reviews, and book chapters, mostly relating to famous trials, constitutional history, or constitutional law. His other Great Course is The Great Trials of World History and the Lessons They Teach Us.



Table of Contents Introduction

Professor Biography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Course Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Guides 1

The Trial of Anne Hutchinson . . . . . . . . . . . . . . . . . . . . 3


The Trial of John Peter Zenger . . . . . . . . . . . . . . . . . . .


Two Slave Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . 22


The Trial of John Brown . . . . . . . . . . . . . . . . . . . . . .


The Trial of Susan B. Anthony . . . . . . . . . . . . . . . . . . . 44


The Trial of the Haymarket Eight . . . . . . . . . . . . . . . . .



The Trial of John T. Scopes . . . . . . . . . . . . . . . . . . . . .



The Sweet Trials, Race, and Self-Defense . . . . . . . . . . . . .



Jehovah’s Witnesses and Flag-Salute Cases . . . . . . . . . . . .





Korematsu v. United States . . . . . . . . . . . . . . . . . . . . . . 94


Segregation on Trial . . . . . . . . . . . . . . . . . . . . . . . . . 104


The Lenny Bruce Trials . . . . . . . . . . . . . . . . . . . . . . . 114




The Evolving Right to Marry . . . . . . . . . . . . . . . . . . . . 124


Wisconsin v. Yoder . . . . . . . . . . . . . . . . . . . . . . . . . . 134


Furman v. Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . 143


The Trial of Daniel Ellsberg . . . . . . . . . . . . . . . . . . . . 152


The Road to Roe v. Wade . . . . . . . . . . . . . . . . . . . . . . . 162


The Right to an Intimate Life . . . . . . . . . . . . . . . . . . . . 172


The Ruby Ridge Trial . . . . . . . . . . . . . . . . . . . . . . . . 181


The Trials of Jack Kevorkian . . . . . . . . . . . . . . . . . . . . 190


Boy Scouts of America v. Dale . . . . . . . . . . . . . . . . . . . . 199


Kelo v. City of New London . . . . . . . . . . . . . . . . . . . . . . 209


The Citizens United Case . . . . . . . . . . . . . . . . . . . . . . 218


Liberty for Nonhumans? . . . . . . . . . . . . . . . . . . . . . . 229

Supplementary Material

Quiz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 Image Credits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258



Liberty on Trial in America Cases That Defined Freedom

Americans of all political stripes profess to love liberty. But liberty is a word with many meanings, and what some might see as an exercise of freedom, others might see as indulgent, immoral, or even dangerous. This course examines fascinating trials that have defined the meaning of liberty in America. This is not a philosophy course. The focus is on individual Americans and the stories of their fights for liberty—liberty as they saw it and felt it. The course travels through American history, from Anne Hutchinson’s 1637 trial for daring to challenge Puritan authorities to the new and surprising visions of liberty being championed today. The names of some of these men and women who championed their vision of liberty will be known to many: the printer John Peter Zenger; the abolitionist John Brown; the suffragette Susan B. Anthony; the comedian Lenny Bruce; the controversial doctor who championed assisted suicide, Jack Kevorkian; Randy Weaver, who sought salvation and survival on Ruby Ridge; and Jane Roe, who fought for the right to terminate her pregnancy—and won a Supreme Court victory that remains controversial even today. Others will be persons known to students of constitutional history: the Gobitis and Barnette families of Jehovah’s Witnesses, who challenged mandatory flagsalute laws; Fred Korematsu, the Japanese American who challenged World War II laws that sent him and others like him to relocation camps; Susette Kelo, who fought to save her little pink house from being taken by eminent domain; Michael 1


Hardwick and John Lawrence, who went to court to win the right to have intimate relationships with people they loved; and Richard and Mildred Loving, the interracial couple who fought for their right to live together in Virginia. Finally, some of the stories covered in this course will be known only to a precious few, such as the story of Celia, a young slave girl who fought back after enduring years of victimization by her master. Some of these individuals win their court battles; others lose theirs. You will not agree that each and every one of these Americans deserved to enjoy the liberty they sought. We all see liberty through our own eyes. Liberty is an important value, but it is not our only important value. Order is an important value, too. For some judges and jurors, order is a value that trumps liberty. This course will give you a new appreciation of liberty in America, not so much as it exists in paper guarantees, but as it has been recognized or denied by juries and courts for people who have fought for their visions of liberty—liberty as it is being continuously redefined.


Lecture 1

The Trial of Anne Hutchinson


 the 1630s, in the Massachusetts Bay Colony, the n trial and conviction of Anne Hutchinson helped set America on a path toward liberty. Hutchinson’s trial gave her the chance to address not only her entire colony but posterity—an opportunity few other women in the 1600s could ever hope to enjoy. Perhaps more importantly, the decision of the General Court in November 1637 might well have been wrong, but it helped lead to the birth of a nation where liberty would take on a new and more generous meaning. The Hutchinson trial established that there would be no religious freedom for those in Massachusetts whose views differed from the approved theology. But it led to an exodus of dissenters who helped create a more tolerant society.


Lecture 1  The Trial of Anne Hutchinson

Puritans in Colonial New England wwIn the spring of 1630, the Arabella sailed the waters of the Atlantic. On board was John Winthrop and other future leaders of the Massachusetts Bay Colony. Winthrop foresaw that his new Puritan community would be a beacon for the world—a world that was losing its way. wwMassachusetts Bay was not about diversity of thought. Puritans were sure they held the one true John Winthrop religion. The General Court* even enacted in 1637 a law prohibiting anyone from settling in the colony unless their orthodoxy wwAnne was a smart and had first been approved by independent-minded English magistrates. Ideas, the Puritans woman. She was also a Puritan. believed, could be dangerous. And like the Puritans who left England for the New World before her, Anne was no fan of the wwThis much is clear: America was Anglican church. not, at first, the “land of liberty.” The Puritans wanted like-minded people who shared common wwMany Sundays, Anne and William goals. No event better illustrates Hutchinson made six-hour this than the trial of Anne trips to hear sermons delivered Hutchinson. by the minister John Cotton, * The General Court was an all-powerful body in the colony. It mixed legislative,

executive, and judicial functions. 4

Lecture 1  The Trial of Anne Hutchinson

who preached that God offers salvation to the elect without condition—that neither faith nor good works were required. And Anne saw Cotton’s view as absolute truth.

admired left, “there was none in England that I durst hear.” And so, she concluded, “I must go thither also.”

wwThree years after the founding of the Puritan colony, Cotton sailed for Massachusetts. He soon became the most popular preacher there.

wwWilliam sold his business and bought tickets for their family, including their 10 children, for the trip to America. And in August 1634, they boarded the Griffin, a vessel that sailed back and forth across the Atlantic.

wwCotton’s departure for America left Hutchinson without her most important religious inspiration. She said that after Cotton and another minister she

wwWhen the Hutchinsons arrived in Boston Harbor about two months later, Cotton greeted them on the pier and led the family up the dock to their new home.

Women’s Social and Religious Roles wwReligion was everything in the colony. The Bible was often the only book in a home. Colonists read and studied scripture on a daily basis. Church services were long and frequent. Services were held in spare meetinghouses—no altars or statuary, no singing or formal liturgy. It was all rather severe.

wwEqually severe was the Puritan view of women’s social and religious roles. In the Massachusetts Bay Colony, women were banned from active participation in church services. Women could not be ministers, vote on church matters, or even talk in church. They entered the church meetinghouse through a 5

Lecture 1  The Trial of Anne Hutchinson

separate door and sat together on a separate side of the building. All that was left to them was to meet in their homes to discuss their minister’s last sermon or Biblical text.

wwAmong the colony’s leaders, however, Anne’s activities raised eyebrows. Word leaked that in her study groups, she often challenged the Biblical interpretations of local ministers in their sermons. In particular, Anne took issue with ministers who preached what she called a covenant of works—that is, ministers who suggested that people needed to display their faith and act as decent Puritans in order to be saved.

wwIt was in these women’s study groups that Anne Hutchinson began to make a name for herself. At first, she met once a week in her home with five or six women. Typically, she would discuss Cotton’s latest sermon and then offer her own spin on it. But her meetings grew in popularity to the point where she added a second weekly session, and her living room became cramped.

wwHutchinson insisted that salvation was a matter of grace— that God chooses souls before birth and grants the gift of salvation without conditions. The apostle Paul lays the groundwork for the covenant of grace in passages like Ephesians 2:8–9: “For it is by [God’s] grace you have been saved […] not by works, so that no one can boast.”

wwAnne’s reputation as an astute interpreter of the Bible spread throughout the colony. Men, too, began to gravitate to Hutchinson’s movement— especially members of the merchant class, who appreciated her emphasis on individual worth and responsibility.

wwThe Puritans valued theological orthodoxy above almost everything, and for certain leaders of the colony, Anne’s


Lecture 1  The Trial of Anne Hutchinson

interpretation presented a practical difficulty. On the one hand, the Puritans embraced the covenant of grace as theological orthodoxy. But on the other hand, many Puritan ministers saw a problem with the way Hutchinson applied the doctrine. On her interpretation, it seemed that people could sit idly by and expect salvation, regardless of their behavior. It was all too easy and might discourage rulefollowing and even, God forbid, lead to skipping church services.

supporters struck back. Winthrop compiled a summary of Anne’s grave mistakes: She would, he said, “interpret passages at her pleasure and expound dark places of scripture and make it her own.” Rather than sticking to “wholesome truths,” she “set forth her own stuff.” wwMay 17, 1637, was a turning point in the history of Massachusetts Bay. Magistrates and freemen assembled in Cambridge to decide who would control the colony: the Hutchinsonians or their enemies. With some cunning and chicanery, supporters of Winthrop and his orthodox theology carried the day. Winthrop was elected governor for a second time, replacing Henry Vane, who had been strongly backed by the Hutchinsons. It was a major power shift in the colony. And with it, the wheels of power turned against Anne Hutchinson.

wwThings were getting out of hand, in the ministers’ opinion. Exhibit A was when Hutchinson became upset with a sermon being delivered by a minister and led a parade of women out of the meetinghouse—the first walkout in American history. wwThe colony that so valued unity divided into two camps. For a while, the Hutchinson camp was riding high; her meetings were more popular than ever. But John Winthrop and his

wwAs governor, Winthrop decided to put Hutchinson on trial.


Lecture 1  The Trial of Anne Hutchinson

Liberty can mean many things. In its broadest sense, it can mean the power to do as one pleases, even when it might bring harm or offense to others. In a narrow and important sense, liberty can mean freedom from physical restraint. Liberty can mean the affirmative right to enjoy certain economic or political privileges. Liberty can also mean freedom from arbitrary governmental action. Liberty is a big tent that covers a lot of sometimes contradictory notions about freedom and rights and individualism. And there are as many different ideas about how best to protect it.

Banished and Imprisoned wwThe trial of Anne Hutchinson began on November 7, 1637. It took place in a thatched-roof meetinghouse in Cambridge (or Newtown, as Cambridge was called at the time). The nine magistrates and 31 deputies of the General Court of Massachusetts—including the deputy governor, a team of assistants, and freemen selected by the 14 towns of the colony— took their seats. Then, eight ministers strode into court. They were on hand to offer testimony. Winthrop had taken the

precaution of disenfranchising Hutchinson’s supporters, so the magistrates and deputies were heavily stacked against her. wwGovernor Winthrop served as both the chief prosecutor and the chief judge. He saw the trial as a chance to fortify his position of power and unify the colony. Fights over religious issues, especially this question of salvation, had divided and weakened the colony. As between liberty or order, count Winthrop on the side of order.


Lecture 1  The Trial of Anne Hutchinson

wwHutchinson stood silently in front wwThe governor conceded of the governor as he outlined Hutchinson was a woman of her sins: unusual talents. “Yes, you are a woman of most note, and of best abilities,” he said. But that made You have spoken diverse things […] her all the more dangerous in his very prejudicial to the honor of the opinion. She had influence over churches and ministers […] and you the opinions of others. have maintained a meeting […] in your house that hath been condemned by

wwA key question was whether Anne had accused ministers of nor fitting for your sex. preaching falsely a covenant of works. Anne argued that what she believed or said in private wwHutchinson answered by could not be a crime. And because complaining about the vague women had no public role in nature of the accusations against Puritan society, any and all her: “I am called here to answer opinions she had or expressed before you, but I hear no things must be considered private—a laid to my charge.” Nothing rather clever argument. Winthrop had alleged Hutchinson had done amounted to a criminal offence. wwThen, six ministers testified. They agreed that Anne had accused them of teaching a wwHutchinson and Winthrop covenant of works and not being then traded Biblical passages competent ministers. as evidence for and against a woman’s right to provide instruction on the meaning of wwThe next day, when the court scripture. Arguments in Puritan reconvened, Hutchinson called Massachusetts were won or lost three witnesses in her defense. on scripture; every word was One witness told the court considered meaningful and true. that Hutchinson did not say all the general assembly as a thing not

tolerable or comely in the sight of God


Lecture 1  The Trial of Anne Hutchinson

that the ministers accused her of saying. A second witness, a lawyer, testified that Anne never specifically charged the ministers with preaching a covenant of works. Rather, she only said that “they did not preach a covenant of grace so clearly as Mr. Cotton did.” Hutchinson’s third and most influential witness was the Reverend John Cotton, who said he never heard her specifically accuse other ministers of preaching a covenant of works.

of the Antichrist.” She told the judges that she saw the truth “by an immediate revelation” from God—“by the voice of his own spirit to my soul.” wwTo her judges, this was arrogance and heresy: God spoke only through ministers and scripture—and certainly not directly to women! wwAnne’s outburst made it easy for the judges to do what they wanted to do anyway: rid the colony of Anne Hutchinson.

wwCotton’s testimony was potentially helpful. If Anne had left things there, she might have gotten off with an admonishment, not a conviction for heresy. But she jumped in and began to lecture the court.

In March 1638, William Hutchinson and 17 other men seeking a new, more religiously tolerant place incorporated themselves into what they called a Bodie Politik and signed their names to what came to be called the Portsmouth Compact.

wwHutchinson told the court that the Lord told her to “come to New England [and] not fear.” She said, “The Lord did give me to see that those who did not teach the New Covenant had the spirit

The group settled on a new home: Aquidneck Island. Some years later, the new settlement of Portsmouth would become part of the colony of Rhode Island.


Lecture 1  The Trial of Anne Hutchinson

wwWinthrop declared Hutchinson wwIn April 1638, Hutchinson guilty—of what, exactly, boarded a ship that took her to Winthrop was less than clear. The the island of Aquidneck, where finding seems to rest both on the she could finally speak her mind. heresy of claiming a revelation But Anne’s days of freedom and from God and on the sedition of happiness were numbered. Her resisting the lawful authority of husband died four years later, and ministers. Anne and her children settled on land in the Dutch settlement of New Amsterdam (later to become wwWinthrop summed up the New York City). proceedings and asked for a vote. Only two of the 40 judges voted against banishment and wwIn the summer of 1643, Dutch imprisonment. neighbors warned Anne that Indian warriors were sweeping through the area and that she wwThe General Court allowed and her family should flee their Hutchinson to remain in farmstead. But Anne put her Massachusetts through the trust in God. The warriors killed winter. She stayed, under house and scalped Anne and six of her arrest, at a home in Roxbury. And children and then burned down an alien exclusion law prevented her house. any new Hutchinson supporters from settling in the colony.


wwBefore Anne could leave Massachusetts, she faced a church trial. Before the congregation of the Church of Boston, Anne was examined and excommunicated.

Hall, ed., The Antinomian Controversy. LaPlante, American Jezebel. Williams, Divine Rebel. Winthrop, Short Story of the Rise, Reign, and Ruin of the Antinomians, Familists, and Libertines.


Lecture 2

The Trial of John Peter Zenger


i berty of the press is something most Americans take for granted. It wasn’t always that way. The earliest colonial newspapers were essentially instruments of the government. They printed stories and editorials governors wanted printed, not what the governed might want to read about. The first independent political newspaper in America appeared in 1733 in New York. Less than two years later, the printer of that paper, John Peter Zenger, became the defendant in a criminal trial. The Zenger trial is a story about a divided colony, the beginnings of a free press, and the stubborn independence of American jurors.


Lecture 2  The Trial of John Peter Zenger

The War of the Newspapers wwWilliam Cosby, the governor of strained verse. One of those the Province of New York since malcontents Harison wrote about 1732, was a rogue governor, to struck back. say the least. Opposition to his arrogant administration included wwJames Alexander is often some of the most powerful people described as the mastermind of in the colony. Among the leading the Cosby opposition, and he opponents of Cosby were former took the bold step of founding Chief Justice Lewis Morris and America’s first independent an energetic attorney named newspaper focused on politics. Of * James Alexander, who organized course, you can’t publish a paper without a printer. So Alexander what came to be known as the approached the German Popular Party. immigrant John Peter Zenger, one of only two printers in the wwCosby worried about losing colony. Alexander proposed his grip on power, so he hired that Zenger publish his weekly a hatchet man named Francis newspaper to be called The New Harison. The first of what has York Weekly Journal. And Zenger become a long line of American agreed to print it, as this new job political hatchet men, Harison would pay very well by colonial became the censor and the standards. effective editor of the only established New York newspaper, the New York Gazette. Harison wwIn a letter to a friend, Alexander used the paper to flatter and revealed the paper’s mission: defend Cosby in both prose and “to expose Cosby and those

* James Alexander was America’s first champion of an abstract theory of press

freedom—a freedom that extended beyond merely protecting the economic self-interest of printers. His essays on press freedom are among the precious few American writings before the mid-1760s that reflect a broad view of press freedom. 13

Lecture 2  The Trial of John Peter Zenger

ridiculous flatteries with which Mr. Harison loads our other newspaper.”

that Quakers only “affirmed” rather than swore to the oath required of all voters, Cosby had ordered the sheriff to disqualify all Quaker voters. Quakers were expected to be strongly pro-Morris.

wwOn November 5, 1733, Zenger published the first issue of the Journal. The big news was the victory the previous week of Lewis Morris as Popular Party candidate for assemblyman. Readers could learn how Morris won the election despite the best efforts of Cosby to rig the election. On the flimsy ground

wwThe election story called the sheriff’s intervention “contrary to law and a violent attempt upon the liberties of the people.” wwMorris’s victory, even without Quaker votes, no doubt surprised and disappointed Cosby—one of America’s first political upsets. wwAfter the election, editorials in the Journal continued to attack misdeeds of the governor. No name was attached to the editorials, but we now know they were authored by Alexander. wwAfter two months, Cosby decided he could not put up with the Journal’s attacks any longer. It had to be shut down. At the governor’s urging, Chief Justice

Lewis Morris 14

Lecture 2  The Trial of John Peter Zenger

Appearing in the Journal’s second issue, this editorial by James Alexander is the first editorial in America to offer such a ringing defense of the right to publish: The loss of liberty in general would soon follow the suppression of the liberty of the press; for it is an essential branch of liberty, so perhaps it is the best preservative of the whole. […] No nation ancient or modern has ever lost the liberty of freely speaking, writing or publishing their sentiments, but forthwith lost their liberty in general and became slaves.

Journal. But still the jurors, claiming that the authorship of the allegedly libelous material could not be determined, refused to indict.

James De Lancey asked a grand jury to return indictments based on the law of seditious libel. The seditious libel law of the time allowed criminal punishment of those whose statements impugned the authority and reputation of the government or religion—regardless of the truth of the statements.

wwCosby was frustrated. He announced a reward of 50 pounds for the discovery of the authors of the libels. He issued another order that Zenger’s newspapers be publicly burned by “the common hangman.” Then, in an effort to get around the grand jury’s refusal to indict, Cosby ordered his attorney general to file what is called an information before the

wwThe grand jury refused to return indictments. De Lancey tried again when the next grand jury met. This time, he presented the grand jurors with broadsides and “scandalous” verse from Zenger’s


Lecture 2  The Trial of John Peter Zenger

provincial Supreme Court. Based on the information, De Lancey and Justice Frederick Philipse— both Cosby loyalists—issued a bench warrant for the arrest of John Peter Zenger.

wwJames Alexander wrote the pieces that offended Cosby. By rights, he ought to have been in the prisoner’s dock instead of Zenger. But the governor had no evidence linking Alexander to the writings. So he was free, along with a fellow lawyer friend of his, to prepare the printer’s defense. But not for long.

wwOn November 17, 1734, the sheriff arrested Zenger. He took him to New York’s Old City Jail, where Zenger would remain for the next eight months.

wwDe Lancey ordered Alexander and his fellow lawyer disbarred. The reason given was the pair’s audacious objection on the grounds of judicial bias to the two-man court Cosby had handpicked to try Zenger’s case.

wwThe Journal was not published the following day. It would be the only issue ever missed in its publishing history. The next week, with the help of Zenger’s wife, Anna, the Journal resumed publication.

wwBut Alexander recruited Andrew Hamilton of Philadelphia to argue Zenger’s case. At age 60, Hamilton was perhaps the ablest and most eloquent attorney in the colonies. Alexander, even though disbarred, continued to work behind the scenes. He drafted a detailed brief of the argument that Hamilton would make.

wwThe justices set bail for Zenger at 800 pounds—an enormous amount at the time. The huge bail turned into an important tactical advantage for the printer. Zenger’s stream of so-called letters from prison caused an outpouring of public sympathy for him. That sympathy would serve him well in his trial.


Lecture 2  The Trial of John Peter Zenger

Libel Law wwThe trial opened on the second floor of New York’s City Hall. The two judges sat on an ornate judicial bench, while spectators took up every available space on the courtroom’s wooden benches.

packing the jury. He ordered his henchman, Francis Harison, to produce a roll of potential jurors that included 48 men presumed to be sympathetic to the governor. Many were former magistrates and persons in Cosby’s employ.

wwJury selection began on July 29, 1735. Once again, Cosby attempted to influence events by

wwThis departure from normal procedures was too much even for


Lecture 2  The Trial of John Peter Zenger

Cosby’s handpicked judges, who rejected the ruse. Twelve jurors were quickly selected.

prolonged silence. Prosecutors seemed to be unsure what should happen next. Finally, Bradley spoke:

wwNew York’s attorney general, Richard Bradley, read the information filed against Zenger. Bradley told jurors that Zenger, “being a seditious person and a frequent printer and publisher of false news and seditious libels,” had “wickedly and maliciously” devised to “traduce, scandalize, and vilify” Governor Cosby and his ministers.

As Mr. Hamilton has confessed the printing and publishing of these libels, I think the Jury must find a verdict for the king. For supposing they were true, the law says that they are not the less libelous for that. Nay, indeed the law says their being true is an aggravation of the crime.

wwLibels are all the more criminal if they are true!

wwAndrew Hamilton rose to announce that his client would not contest having printed and published the allegedly libelous materials: “Therefore I shall save Mr. Attorney the trouble of examining his witnesses to that point.”

wwBradley then offered an account of the state of law on seditious libel of the time. And he was right. As the law stood, the truth of a libel was no defense. wwAndrew Hamilton, for the defense, rose to argue that the law ought not to be interpreted to prohibit “the just complaints of a number of men who suffer under a bad administration.” He suggested that the Zenger case was of transcendent importance.

wwFollowing Hamilton’s surprise announcement, the prosecution’s three witnesses summoned to prove that Zenger had published the offending expression were sent home. There followed a


Lecture 2  The Trial of John Peter Zenger

wwHamilton argued that the libel charge of libel. It is no surprise, law of England ought not to be then, that Chief Justice De the libel law of New York—that Lancey ruled that Hamilton could differences between the New not present evidence of the truth World and the Old World justified of the statements contained in a different application of law. Zenger’s Journal. There is good reason to believe that Hamilton’s arguments were ww“The law is clear that you cannot well received by jurors. justify a libel,” De Lancey announced. “The jury may find that Zenger printed and published wwThe problem was this: Hamilton those papers, and leave to the had almost no hard law to Court to judge whether they are support his position that the libelous.” truth should be a defense to the

Jury Nullification wwAfter De Lancey’s ruling, Hamilton’s real strategy became clear. He would ask the jury to nullify the law†; that is, with the law favoring the prosecution, Hamilton hoped to convince the jury that the law ought to be ignored and his client acquitted. The jury’s power in this regard, he argued, was unquestioned:

Jurors have the right beyond all dispute to determine both the law and the fact. […] Leaving it to judgment of the court whether the words are libelous or not in effect renders juries useless.

wwHamilton’s lengthy summation to the jury still stands as an eloquent defense not just of one printer, but of a free press. It is

† Jury nullification can occur when the government tries to enforce morally repugnant

or unpopular laws. Juries use nullification to send a message to the powers that be. 19

Lecture 2  The Trial of John Peter Zenger

the most powerful defense of liberty seen in America since the Mayflower landed at Plymouth Rock. Here’s part of it:

wwDe Lancey seemed at a loss as to how to react to Hamilton’s eloquence. After a bit of fumbling, he told the jury that its duty under the law was clear: There were no facts for it to decide, and it was not to judge the law. De Lancey all but ordered the jury to return a verdict of guilty.

It is a right, which all free men claim […] publicly to remonstrate against the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open

wwThe jury withdrew to deliberate. assert with courage the sense they have A short time later, it returned. of the blessings of liberty […] and their The clerk of the court asked the resolution at all hazards to preserve it jury foreman, Thomas Hunt, to as one of the greatest blessings heaven state the verdict of the jury. “Not can bestow. […] The loss of liberty, guilty,” Hunt answered. The to a generous mind, is worse than crowd of spectators erupted with ‡ death. […] “huzzas” and “shouts of joy.” Defeated, De Lancey stomped out of the courtroom, leaving it to the The question before the Court and you, jubilant crowd. Gentlemen of the jury, is not of small violence of men in authority, and to

or private concern. It is not the cause

wwThe Zenger trial established no new law. And it did not, at least for another generation, dramatically reshape notions of press freedom. Yet Zenger’s acquittal signaled, in unmistakable terms, the public’s

of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty.

‡ Note how Patrick Henry’s famous words—“Give me liberty or give me death!”—

echo those of Hamilton’s. 20

Lecture 2  The Trial of John Peter Zenger

A half century after the Zenger trial, members of the First Congress debated the proposed Bill of Rights and its guarantees of freedom of speech and of the press. The trial was then remembered by one of the Constitution’s principal drafters, Gouverneur Morris, the man who wrote the famous words of the preamble.

opposition to prosecutions for published criticism of unpopular officials.

reasonable basis for concluding that the defendant was not guilty of the offense charged.

wwConcern about likely jury wwJuries have the power—if not nullification discouraged the right—to nullify laws that prosecutions in the decades they believe are either immoral following the trial. The Zenger or are being wrongfully applied case reinforced the understanding to the defendant. No trial more in American law that jurors have famously or more forcefully the power to return a verdict of illustrates that key principle not guilty even when they have no better than the Zenger trial.

READINGS Finkelman, ed., A Brief Narrative of the Case and Trial of John Peter Zenger. Kluger, Indelible Ink. Levy, ed., Freedom of the Press from Zenger to Jefferson.


Lecture 3

Two Slave Trials


 e issue of slavery divided Northern and h Southern delegates to the Constitutional Convention in 1787. In the end, compromises were made to secure Southern state ratification. And so, there began a chain of causes and effects that would eventually lead to the Civil War. Two slave trials, one year and half a continent apart, came as the question of slavery heated up in the 1850s. They raise very different legal issues, but both show that liberty for slaves was just a dream: As the Burns trial demonstrates, they couldn’t run, and as Celia’s trial shows, they couldn’t fight back.


Lecture 3  Two Slave Trials

The Burns Trial wwAnthony Burns was a slave for wwSuttle wanted his slave back. He a series of masters in Virginia went to state court in Virginia to beginning at age 7. He mangled begin the process of recovering his hand in a sawmill accident Burns. The court declared in when he was 12. Against odds and a transcript that Suttle had against state law, he learned how produced “satisfactory proof” of to read. Then, as a young man, his ownership of Burns. he became a minister to the slave community. wwUnder the Fugitive Slave Act, such a transcript was deemed “full and conclusive evidence” wwIn late February or early March of escape and that the slave of 1854, at age 20, with the help owed service to the party in the of a sympathetic sailor, Burns record. With his transcript in managed to stow away on a ship hand, Suttle set off for Boston to bound for Boston. Once there, reclaim Burns. he landed a few temporary jobs and then found work in a clothing store. wwIn Boston, Suttle and William Brent, a Virginian who had purchased Burns’s service for wwIn a letter to his brother, enslaved two years, appeared before in Richmond, Burns revealed that Commissioner Edward Loring. he was living in Boston. The letter Faced with the Virginia fell into the hands of his brother’s transcript, Loring felt he had master, who in turn conveyed no choice but to issue an arrest it to Burns’s former master, warrant for Burns. Charles Suttle.


Lecture 3  Two Slave Trials

wwThat evening, after leaving work, Burns was grabbed and carried bodily by a half dozen men to the Boston Courthouse. His captors stashed him in the jury room and locked the door. Burns was told he would face a rendition hearing the next morning.

assault plan met to work out details. Meanwhile, another group of abolitionists met to discuss a plan to pay Burns’s master whatever it took to buy Burns’s freedom. wwThat evening, a crowd of 2,000 to 5,000 people gathered in Faneuil Hall to protest the rendition proceedings. The abolitionist Wendell Phillips inflamed the crowd by praising the recent murder of a slave owner bent on recapturing a fugitive slave in Pennsylvania. If Burns “leaves the city of Boston, Massachusetts is a conquered state,” Phillips said.

wwBut this was Boston, an abolitionist hotbed. And several members of an abolitionist organization known as the Vigilance Committee showed up in the courtroom the next morning. wwAn antislavery lawyer named Richard Henry Dana offered Burns his services. Burns was reluctant at first, but he ended up giving his support to a defense.

wwAs the protest was about to wind down, someone shouted that a crowd was assembling to rescue Burns. By 9:30 p.m., several hundred people had gathered around the courthouse. One man began distributing axes. Several other men used a wooden beam stolen from a nearby construction site and began ramming it against the courthouse’s double doors.

wwThe Vigilance Committee was split between members who favored nonviolent protest in opposition to Burns’s rendition and those who favored an assault on the courthouse to free him. The 30 or so who favored the


Lecture 3  Two Slave Trials

The Burns case raised fundamental questions: What should a judge do when faced with an immoral and unjust law— one that denies the most basic of human liberties? Is it the judge’s job to enforce the law as written, or should he or she find some reason, even if barely plausible, to secure a just result? These are questions judges continue to face.


Lecture 3  Two Slave Trials

wwInside the doors were the four dozen or so deputies assigned to guard Burns. Eventually, the battering ram broke through. A melee broke out between the deputies and would-be rescuers.

wwThe rendition hearing turned on both legal and factual questions. The legal questions were whether the fugitive slave certificate issued by Virginia was proper and whether Congress had the power to insist that another state accept that certificate as proof of a slave’s status.

wwBefore Burns could be rescued, police arrived. They arrested a number of the abolitionists. Boston mayor Jerome Smith wwThe abolitionists lost on the called out the state militia to legal question. So they turned to reinforce Burns’s guard. The the factual question: Was Burns militia was soon joined by actually the man described in the marines after President Franklin Virginia certificate, or might this Pierce declared, “The law must be be a case of mistaken identity? executed.” wwAttorneys for the claimants ridiculed the defense’s effort wwTwo days later, in this highly to show mistaken identity. But charged atmosphere, the Dana argued that the defense had rendition proceeding resumed. shown reason to doubt that Burns Efforts to buy Burns’s freedom was the slave described in the had fallen through, in part certificate. because of questions about the applicability of a Massachusetts law that prohibited the sale wwIn his ruling, Commissioner of slaves. Loring made clear he was no


Lecture 3  Two Slave Trials

fan of the Fugitive Slave Act. He even called the law “cruel and wicked.” Still, the law is the law. Burns’s own statements, he said, made clear he is indeed the man described in the Virginia certificate. Loring concluded that Burns must be returned to the service of his Virginia master.

other slaves at the jail and given only enough food and water to survive. In November, Burns went on auction at a Richmond fair and was sold to a North Carolina plantation owner for 905 dollars. wwWhen two clergymen from Boston learned of Burns’s whereabouts, they launched a campaign to buy him and return him to a free state. A deal with Burns’s owner was reached.

wwOn the day set for Burns to leave Boston, black banners hung from windows. Someone suspended a coffin from a building with the inscription “the funeral for liberty.” Burns was loaded on a steamer and then transported to a larger ship and taken back to Virginia.

wwBurns went on to become something of a celebrity. He spoke about his capture and rendition to huge crowds in New York and Boston. Eventually, Burns attended a seminary in Cincinnati and took a position as the minister for a black Baptist church in Canada.*

wwBurns spent over the next four months in jail, most of it in an eight-foot-square cell. He was forbidden to have contact with

* In response to the Burns affair, the Massachusetts legislature passed the most

radical personal liberty law the nation had ever seen. It prohibited slave claimants from setting foot on state property, required a jury trial whenever the alleged fugitive slave requested one, placed the burden of proof on claimants, and required that claimants prove their cases with at least two credible witnesses who had no personal stake in the case. Burns would be the last fugitive slave to face a rendition hearing in the state of Massachusetts. 27

Lecture 3  Two Slave Trials

The Celia Trial wwLess than a year after the Burns to do with her if she did not quit trial, another trial unfolded in the old man.” central Missouri, where Robert Newsom owned 800 acres of land wwCelia asked the help of Newsom’s and six slaves. His only female two daughters in getting slave was just 14 when she came Newsom to stop raping her, but to the Newsom farm. Her name they couldn’t—or wouldn’t— was Celia. And ever since she intervene. Celia also begged came, Newsom had been raping Newsom to leave her alone, at her. Whenever he wanted sex, least through her pregnancy. But Newsom walked out to Celia’s he wouldn’t hear of it. slave cabin, located a short distance from his house. wwOn June 23, 1855, Newsom told Celia “he was coming to her cabin that night.” Around 10 p.m., wwSometime before 1855, Celia Newsom left his bedroom and found someone she could really walked to Celia’s cabin. When love. He was another one of Newsom entered the cabin, Newsom’s slaves named George. Celia retreated to a corner. He advanced toward her. Celia wwIn late winter of 1855, Celia grabbed a stick she had placed in became pregnant. The pregnancy the corner earlier in the day. Celia worried George. He wondered raised the stick and smashed whose child it was, his or it hard over her master’s head. Newsom’s? George told Celia in Newsom groaned and slumped strong terms she had to put a stop toward the floor. Celia clubbed to Newsom’s continuing sexual Newsom over the head a second exploitation. According to later time, killing him. trial testimony, George told Celia that “he would have nothing more


Lecture 3  Two Slave Trials

up bone fragments from the ashes and smashed them against the hearth stones and then threw the particles back into the fireplace. A few larger pieces of bone she put “under the hearth.” Shortly before daybreak, Celia went to bed.

wwAfter making sure “he was dead,” Celia spent an hour or so pondering her next step. Finally, she decided to burn Newsom’s body in her fireplace. She kept the fire going through the night, and in the early morning, she gathered


Lecture 3  Two Slave Trials

wwIn the morning, Newsom’s then added suspiciously: “It was family grew concerned about his not worthwhile to hunt for him disappearance. Meanwhile, Celia anywhere except close to the enlisted the help of Newsom’s house.” Faced with severe threats, grandson, Coffee Waynescot, George eventually provided in shoveling ashes out of her an additional damning bit of fireplace and into a bucket. Coffee information: that “he believed the testified later he decided to help last walking Newsom had done when Celia offered him “two was along the path” leading from dozen walnuts.” Following Celia’s the house to Celia’s cabin. instruction, Coffee distributed what he would later find out to wwA search of Celia’s cabin failed to be the remains of his grandfather turn up Newsom’s body. But the along a path leading to the searchers located Celia doing her stables. regular duties in the kitchen of the Newsom home. Questioned by Powell, Celia denied any wwSearch parties looked for knowledge of her master’s fate, Newsom along nearby creek even faced with escalating banks and coves, fearing he might threats. Eventually, though, have drowned. After fruitless Celia admitted that Newsom had hours, suspicion began to turn indeed visited her cabin seeking to George, who Newsom’s sex the previous night. For some relatives thought might have been time, she refused to say more. motivated to kill Newsom out of Finally, after Newsom’s two sons jealousy. left the room, she confessed to the murder of Robert Newsom. wwA nearby farmer and slave owner, William Powell, was recruited to question George, who denied wwThe search party found Newsom’s any knowledge of what might ashes along the path to the have happened to Newsom—but stables. They gathered bits of


Lecture 3  Two Slave Trials

bones from Celia’s fireplace, defense. Under the existing law in larger bone fragments from under Missouri and most other states, the hearth, and Newsom’s burnt a criminal defendant could not, buckle, buttons, and blackened under “the interested party rule,” pocketknife. The collected items testify. were placed in a box for display during the inquest that was wwCircuit Court Judge William to come. Hall’s jury instructions made an acquittal all but impossible. He rejected all proposed wwThe case of State of Missouri v. defense instructions about Celia, a Slave began when an motive or degree of culpability. inquest jury assembled at the Among those thrown out were Newsom home. The last of three instructions that would have witnesses was Celia. She admitted allowed the jury to return a to killing Newsom, but insisted verdict of not guilty if the jury that “she did not intend to kill believed that Celia killed Newsom him when she struck him, but in an attempt to fight off his only wanted to hurt him.” The sexual advances. inquest jury quickly determined that probable cause existed that Celia feloniously and willfully Celia’s trial came at a time of high tensions over the issue of murdered Robert Newsom. The slavery. Missouri was awash slave girl was ordered taken with proslavery rhetoric. to the Callaway County jail in Vigilante groups in the state were Fulton, nine miles north of the organizing to ensure Kansas Newsom farm. would enter the Union as a slave state. Three days before the start of Celia’s trial, John Brown wwIn the trial, Celia’s jurors were arrived in Kansas to crusade for all male, and several were slave free-state status. On Missouri’s owners. Celia, as a slave, was western border, the possibility of not called as a witness by the civil war seemed real. 31

Lecture 3  Two Slave Trials

wwThe defense had proposed that wwHall’s pro-prosecution the jury be told that they could instructions came as no surprise. acquit Celia on a self-defense The legal rights of slaves ranged theory if she believed she was “in from minimal to nonexistent. imminent danger of forced sexual Celia was found guilty of firstintercourse.” But Judge Hall told degree murder. jurors that wwThe next day, Judge Hall sentenced Celia to be “hanged by the defendant had no right to kill the neck until dead.” Celia was [Newsom] because he came into her cabin and was talking to her about hanged on December 21, 1855. having intercourse with her or


anything else.

Burke, On Slavery’s Border. Maltz, Fugitive Slave on Trial. McLaurin, Celia, a Slave.


Lecture 4

The Trial of John Brown


 November 7, 1837, a proslavery mob destroyed n the presses of an abolitionist newspaper in Illinois, murdering its editor, Elijah Lovejoy, in the process. Two days later, an antislavery meeting was held at a local church to protest the murder. Just before the meeting closed, a man toward the back rose to his feet, lifted his right hand, and announced: “Here, before God, in the presence of these witnesses, from this time, I consecrate my life to the destruction of slavery!” The man was John Brown.


Lecture 4  The Trial of John Brown

The Fight against Slavery wwThere’s something distinct about and then retreat with them to the announcement Brown made the Appalachian Mountains. in that meeting in 1837. His Eventually, they would form a decision to consecrate his life to black colony there. slavery’s destruction was a step in his evolution—a step away from wwBrown focused his thoughts on the pacifism of most abolitionists the federal arsenal at Harper’s and toward a radical, militant Ferry, a town that sits on a approach. He first accepted, and peninsula at the confluence of the later embraced, violence as a Shenandoah and Potomac Rivers. necessary tool in the fight against According to his daughter, Brown slavery. drew sketches of forts that he hoped to build for protection in hills surrounding the Ferry. wwBrown began formulating a plan to incite a slave insurrection in the South. He revealed his wwBy 1854, Brown was recruiting plan to Frederick Douglass in men to participate in his planned Springfield, Massachusetts, in attack. But the raid on Harper’s 1847. Brown said he planned to Ferry would be postponed for find 25 men who would sneak five more years. In the meantime, onto plantations, liberate slaves, Kansas happened.

Brown’s commitment to racial justice ran deep. He promoted a school for African Americans and insisted that his two black employees be allowed to sit in his pew at his Congregational Church—an unprecedented demand that led to his expulsion from the church. He served as a conductor in the Underground Railroad and constructed a hiding place for fugitive slaves in his barn.


Lecture 4  The Trial of John Brown

John Brown


Lecture 4  The Trial of John Brown

Attack on Kansas wwThe infamous Kansas-Nebraska Act opened the western territories to slavery unless settlers in the territory voted for abolition. Brown followed three of his sons to Kansas in 1855, determined to prevent Kansas from falling into the slavery column.

congressman Preston Brooks used his gold-topped cane to club, and nearly kill, Massachusetts senator Charles Sumner, who had just delivered an abolitionist speech, “The Crime against Kansas.” wwFor Brown, the raid on Lawrence and the caning of Sumner was “the finishing, decisive touch.”

wwBrown’s experience in Kansas convinced him—if he even needed more convincing by wwBrown’s answer to the raid then—that the abolitionist and the caning is well known. cause was too long on words He and six others set out with and too short in action. The raid rifles, revolvers, and swords by a band of about 750 border for proslavery territory within ruffians and Southerners on the Kansas. They broke into the home antislavery town of Lawrence of a proslavery activist. They led drove Brown into a frenzied state. him and his two older sons into Waving banners proclaiming the the woods near their cabin and supremacy of the white race, the hacked them to death. The group band ransacked two antislavery then headed to the cabin of a presses, burned homes, and proslavery district attorney, who looted businesses. met the same end. A short time later, the fifth and final victim was taken and killed. Brown wwThen, the day after the attack directed the killings; he did not, it on Lawrence, on the floor of seems, participate in them. the US Senate, South Carolina


Lecture 4  The Trial of John Brown

wwThe killings changed the way Southerners viewed Northern abolitionists. No longer did they see them all as toothless pushovers; they began to see them as radical, and dangerous. And Brown became a nationally known figure, much hated in the South.

of the United States,” which was a rewrite of the existing Constitution, with its proslavery provision, replaced with a new governing document based on the concept of racial equality. Brown presented his constitution to an antislavery convention in Canada in May 1858.*

wwOver the next two years, Brown divided his time between the efforts to secure free-state status for Kansas and planning his invasion at Harper’s Ferry. He met abolitionists to raise money. By the end of 1857, he had lined up men who would play key roles in his attack.

wwMeanwhile, in Kansas, the situation had improved. The territory—despite the best efforts of the federal government—was on track for free-state status. Brown could turn his full attention to the Harper’s Ferry assault.

Frederick Douglass, some years after the Civil War, said it was “not Fort Sumter but Harper’s Ferry” that began the war that ended American slavery.

wwBrown and others drafted a utopian document called “Provisional Constitution and Ordinances for the People

* The antislavery convention in Canada in May 1858 was extraordinary. As historian

David Reynolds noted, “It was organized by a white man, attended largely by blacks, and designed to raise a black army to trigger an African American revolution that would wipe out slavery.” 37

Lecture 4  The Trial of John Brown

The Harper’s Ferry Assault wwBrown raised additional men and money, secured weapons, and contracted with a forge master to make 1,000 iron pikes, which he planned to give to slaves.

wwOn October 15, Brown announced to his 21 recruits that the revolution would begin the next night. In the morning, Brown held a religious service, read his proposed provisional constitution, and assigned wwThen, on July 3, 1859, he put his tasks. Eighteen men would grand plan into action. Brown directly participate in the raid and three other men scouted the on the arsenal. Some would cut federal arsenal at Harper’s Ferry,† telegraph wires, others would where almost 200,000 weapons secure bridges, and still others were stored. Brown planned to would take hostages. Three men take the arsenal, arm freed slaves would carry stolen weapons to in the vicinity, and then retreat to a schoolhouse near Harper’s the mountains. From there, they Ferry for distribution to the could mount additional raids to freed slaves. free more slaves. wwAfter the scouting expedition, Brown rented a farm about five miles from Harper’s Ferry, across the Potomac in Maryland. Over the next two months, Brown’s additional recruits, both whites and blacks, arrived at the farm. The men prepared rifles and studied military strategy.

wwBrown told his men to use violence only as a last resort. And at eight p.m., Brown told his forces, “Men, get your arms; we will proceed to the Ferry.” wwThe early stages of Brown’s plan went well. Wires were cut and bridges taken without bloodshed. Brown seized the night watchman

† The town of Harper’s Ferry manufactured more weapons than any other place in

the South. 38

Lecture 4  The Trial of John Brown

at the federal armory, and his men took control of the arsenal and captured hostages.

Brown continued to believe. He held out hope that his revolution would succeed.

wwThen, Brown waited for news wwMeanwhile, local townspeople of his raid to reach local slaves. took up arms to fight the He expected the news would invaders. Worse yet, an eastbound lead to a rebellion against their train, after being temporarily white masters. Brown sent six halted by Brown’s men, was men to the countryside to get the allowed to continue to the next liberation process going. He told station. The conductor wired them to give each freed slave a Baltimore that “150 Abolitionists” pike, which could either be used had taken Harper’s Ferry intent for defensive purposes or to guard on freeing slaves. President white slave owners. Buchanan and Governor Henry Wise of Virginia initiated plans to counter the invasion. wwBut there was a problem. wwThe freed slaves did not respond as he had hoped. Many seemed confused. The notion of becoming troops in a liberating army was hard to grasp. Some slaves simply ran and hid. The very idea that a white man would come to aid them in a fight against their own white masters seemed incomprehensible.

wwSo escape for Brown from Harper’s Ferry became impossible. Citizen soldiers and two militia companies swept into the area, retook bridges, and moved toward the federal arsenal. Death soon came to members of Brown’s small army. wwBrown remained holed up with more than 30 hostages in the armory. The situation continued to deteriorate. Brown and his men moved with 11 of their key

wwSeveral of Brown’s officers warned him to escape while the escaping was still good. But 39

Lecture 4  The Trial of John Brown

hostages to the brick fire engine house for a last stand. Hundreds of townspeople and 12 militia companies surrounded the engine house. Brown’s men fired out through open double doors. But they kept taking fire.

Brown rejected the offer. Marines stormed the engine house, battering it with sledgehammers. In the battle that ensued, Brown was stabbed three times, and many of his men died. wwThe hostages were liberated, and Brown and four of his surviving men were taken prisoner. Brown was carried to the armory, where he was questioned by reporters and politicians. He told his interviewers that his only objective was “to free the slaves.”

wwOn October 17, a company of marines commanded by Colonel Robert E. Lee arrived at Harper’s Ferry. At dawn the next day, a lieutenant chosen by Lee delivered to Brown a formal demand for surrender.

Harper’s Ferry Insurrection


Lecture 4  The Trial of John Brown

Arrest, Trial, and Execution wwWhat matters most about John wwFaced with obvious criminality, Brown comes after his arrest, not the defense hoped to show that before. For many Northerners, Brown’s intentions were never his words and actions malicious. They hoped Brown’s transformed him into a martyr good faith and respectful for the cause of abolition. And his behavior would be enough to save trial and death helped persuade him from the death penalty. millions that eradication of slavery was the only way to end wwClosing arguments began in the divisions in America. a packed courtroom. Hiram Griswold for the defense argued that because Brown was a citizen wwBrown and his fellow prisoners of New York, it was therefore were transported to Charles impossible for him to commit Town and were arraigned on treason against Virginia. three state charges: treason against Virginia, inciting slaves to rebellion, and murder. wwThen, he addressed the charge of inciting a slave revolt. Griswold argued “there is a manifest wwArmed guards and cannons distinction” between trying surrounded the courthouse in to free slaves, which Brown Charles Town when Brown’s trial admittedly did, and inciting them opened. To the charges against “to rebellion and insurrection,” him, he pled not guilty. which includes “riot, robbery, murder, and arson.” Brown’s wwProsecutors presented witnesses goal was to liberate slaves. It who laid out the events at was not to kill slave owners or Harper’s Ferry. Each of Brown’s inflict mayhem. witnesses described his generous and respectful treatment of prisoners.


Lecture 4  The Trial of John Brown

wwFinally, Griswold conceded, as wwFinally, Hunter told the jury, it is he must, that citizens were shot irrelevant under the law whether during the Harper’s Ferry raid. Brown himself intended to take To call these shootings murders, life. When one perpetrates a however, as the state sought to do, felony and deaths result, that is was to confuse common criminal murder under the law whether conduct with the unfortunate the defendant wished those but sometimes necessary deaths to occur or not. consequences of a military battle. The deaths, Griswold contended, wwJust 45 minutes after being sent were not murders within the out to deliberate, with spectators meaning of Virginia law. They filling nearly every square foot of were battlefield casualties. the courtroom, the jury returned with its verdict: guilty. wwAndrew Hunter closed for the prosecution. Hunter argued wwSentencing took place on that Brown’s “Provisional November 2, 1859. Judge Parker Constitution” showed that he asked Brown if he had anything had grand plans—and that his he wished to say before being plans made him “clearly guilty sentenced. Brown rose, and in of treason.” He said, “When you a clear, distinct voice delivered put pikes in the hands of slaves one of the most memorable and hold their masters captive, courtroom speeches ever by a you cannot then claim to be defendant in a criminal case.‡ merely liberating Negroes and not Here’s part of what Brown said: inciting a slave rebellion.” I believe that to have interfered, as I have done, in behalf of [God’s] despised poor, was not wrong, but ‡ Ralph Waldo Emerson would later call Brown’s courtroom speech, along with the

Gettysburg Address, one of the two greatest American speeches. 42

Lecture 4  The Trial of John Brown

wwAcross the country, views about Brown hardened. Abolitionists saw him as a hero and a practical man of action. Southerners saw him as a dangerous and blackhearted villain. Many in the South linked Brown to what they called the Black Republican Party of the North. After Harper’s Ferry, the consequences of a possible Republican victory the next year became so unimaginably bad that talk of secession began to be heard.

right. Now, if it is deemed necessary that I should forfeit my life for the furtherance of the ends of justice, and mingle my blood further with the blood of my children and the blood of millions in this slave country, whose rights are disregarded by wicked, cruel, and unjust enactments, I submit. So let it be done.

wwJudge Parker listened silently to Brown’s speech. Then, he sentenced him to be publicly hanged in a month’s time.

wwOn December 2, 1859, Brown was executed.

Brown’s actions and statements so polarized Northern and Southern opinion on the slavery issue as to ensure Abraham Lincoln’s election. As a result, the Civil War occurred perhaps two decades earlier than it might have otherwise.

READINGS Reynolds, John Brown, Abolitionist. Trodd and Stauffer, eds., Meteor of War.


Lecture 5

The Trial of Susan B. Anthony


i berty takes many forms. For Susan B. Anthony, the most important liberty was the right to vote. It was a liberty she fought for most of her life. Anthony believed that all of the legal disabilities faced by women owed their existence to the simple fact that women lacked the vote. Anthony would not see women win the right to vote in her lifetime. She would, however, have the satisfaction of seeing her completed ballot drop through the opening of a ballot box on November 5, 1872. And for doing so, Anthony would face a criminal trial—a trial that would give her a chance to spread her arguments for women’s suffrage to a wider audience than ever before.


Lecture 5  The Trial of Susan B. Anthony

Registration and Vote wwAnthony had been planning to vote long before 1872.* She took the position—and argued it wherever she could—that the recently adopted Fourteenth Amendment gave women the right to vote in federal elections. The Amendment says “all persons born or naturalized in the United States […] are citizens of the United States.” Women were obviously citizens. And to Anthony’s thinking, that meant women were entitled to all the privileges of citizens of the United States, including the right to vote.

wwAnthony and her three sisters entered a voter registration office set up in a barbershop in Rochester, New York. They were part of a group of 50 women Anthony had organized to register. Inside the barbershop, three young men serving as registrars sat behind a table. Anthony walked directly to the election inspectors. Then, as one of the inspectors would later testify, Anthony “demanded that we register them as voters.”

* About 150 women

attempted to vote in 1872.

Susan B. Anthony 45

Lecture 5  The Trial of Susan B. Anthony


Lecture 5  The Trial of Susan B. Anthony

wwThe election inspectors elections, who suggested that they refused Anthony’s request. allow the women to take the oath But she persisted. She cited of registry. the Fourteenth Amendment’s citizenship provision. She pointed wwFollowing the supervisor’s advice, to the article from the New the three inspectors allowed York Constitution pertaining Anthony and her three sisters to to voting, which contained no register to vote. sex qualification. The registrars remained unmoved. wwIn all, 14 Rochester women successfully registered that day. The events prompted calls in one wwThen, Anthony caught the city paper for the arrest of the registrars’ attention: voting inspectors who complied with the women’s demand. If you refuse us our rights as citizens, I will bring charges against you in

wwThe polls opened at the West End News Depot on Election Day. Anthony and seven or eight other women cast their ballots. Inspectors voted two to one to accept Anthony’s vote, and her folded ballot was deposited in a ballot box by one of the inspectors.

Criminal Court and I will sue each of you personally for large, exemplary damages!

wwShe added, I know I can win. I have Judge Selden as a lawyer. There is any amount of money to back me, and if I have to, I will push to the “last ditch” in

wwAnthony’s vote went to Ulysses S. Grant and other Republicans. She based her vote on the party’s wwThe stunned inspectors huddled to promise to give the demands of discuss the situation. They sought women a respectful hearing. the advice of the supervisor of both courts.


Lecture 5  The Trial of Susan B. Anthony

wwThe votes of Anthony and other Rochester women were a hot topic of conversation in the days that followed. Anthony occupied much

of her time meeting with lawyers to discuss a planned lawsuit by some of the women whose efforts to register or vote were rejected.

Arrest wwMeanwhile, a Rochester salt manufacturer and Democratic poll watcher filed a complaint charging Anthony with casting an illegal vote. The complaint challenged both Anthony’s registration and her subsequent vote. Acting on the complaint, US Commissioner William Storrs issued a warrant for Anthony’s arrest. The warrant charged Anthony with voting in a federal election “without having a lawful right to vote” and in violation of the Enforcement Act, which carried a maximum penalty of 500 dollars or three years’ imprisonment—or both.

wwFour days later, a US deputy marshal showed up at the Anthony home. Anthony had been expecting her visitor. She had been asked to come to the commissioner’s office, where the arrest would have otherwise presumably been made.† wwAnthony was escorted to the office of the commissioner. She described it as “the same dingy little room where, in the olden days, fugitive slaves were examined and returned to their masters.” wwAnthony was surprised to learn that women voters were not the only persons arrested for

† At a meeting of the National Woman Suffrage Association, Anthony recounted her

arrest, describing the deputy marshal as “a young man in beaver hat and kid gloves (paid for by taxes gathered from women).” 48

Lecture 5  The Trial of Susan B. Anthony

their actions on Election Day. to vote?” Anthony replied: “Not a Authorities also had arrested the particle.” ballot inspectors who had allowed them to vote. wwAfter listening to legal arguments, the commissioner concluded that Anthony probably violated wwAnthony’s lawyers refused to enter the law. Anthony chose to refuse a plea at the time of her arrest. bail, so she was ordered held in custody until the grand jury had wwAt her preliminary hearing, the a chance to meet in January and complainant and Eighth Ward consider issuing an indictment. inspectors appeared as the chief witnesses against Anthony. Anthony was questioned at the wwAnthony was pleased—because hearing by one of her lawyers, she saw the decision to hold her who tried to establish through in jail as her ticket to Supreme his questions that Anthony Court review. She began making believed that she had a legal right plans with her lawyers to file to vote. Because she believed she a petition for a writ of habeas was entitled to vote, the lawyer corpus, which requires the argued, she could not have government to show they are violated the 1870 Enforcement lawfully holding a prisoner. It can Act, which prohibited only willful provide a quick way of getting to a and knowing illegal votes. higher court. Already letters were coming in with contributions to her “defense fund.” She was wwAnthony testified that she had anxious to put the money to use. sought legal advice from Judge Henry R. Selden prior to casting her vote but that Selden said “he wwAnthony did her best to make had not studied the question.” political hay out of her arrest. Her lawyer asked: “Did you have She sent off “hundreds of any doubt yourself of your right


Lecture 5  The Trial of Susan B. Anthony

papers” concerning her arrest to suffragist friends and politicians.

her bail with money from his own bank account.

wwAnthony’s attorney, Henry wwA grand jury of 20 men returned Selden, asked a US district judge an indictment against Anthony, in Albany to issue a writ of habeas charging her with “knowingly, corpus ordering the release of wrongfully, and unlawfully” Anthony from the marshal’s voting in a federal election custody. The district judge denied “without having a lawful right Selden’s request and raised to vote […] being then and there Anthony’s bail from 500 to 1,000 a person of the female sex.” The dollars. Anthony again refused trial was set for May. to pay, but Selden decided to pay

Lecture Tour wwAnthony saw the four months until her trial as an opportunity to educate citizens on the issue of women’s suffrage. She spoke in town after town on the topic of whether it’s a crime for a citizen of the United States to vote.

wwAnthony quoted the Declaration of Independence, the US Constitution, the New York Constitution, James Madison, Thomas Paine, the Supreme Court, and several of the leading Radical Republican senators of the day.

wwAnthony’s lecture tour took her to every one of the 29 post office districts in Monroe County. Her audiences ranged from a few dozen to more than a hundred persons.

wwAnthony ended her hour-long lectures by frankly attempting to influence potential jurors in her upcoming trial:


Lecture 5  The Trial of Susan B. Anthony

She spoke for 21 days in a row, ending her tour in Canandaigua, the county seat, on the night before the opening of her trial.

We appeal to the women everywhere to exercise their too long neglected “citizen’s right to vote.” We appeal to the inspectors of elections everywhere to receive the votes of all United States

wwDespite these efforts, Anthony and her lawyers had actually grown less optimistic about their chances. Two months earlier, the US Supreme Court handed down its first interpretations of the recently enacted Civil War Amendments. They rejected claims and construed key provisions narrowly. In what Anthony called an “infamous decision,” the court narrowly read the Fourteenth Amendment’s equal protection clause to uphold a state law that prohibited women from becoming lawyers.

citizens as it is their duty to do.

wwAnthony’s lecture tour worried her prosecutor, US Attorney Richard Crowley, who convinced Judge Ward Hunt, the recently appointed Supreme Court justice who would hear Anthony’s case, that Anthony had prejudiced potential jurors. Hunt agreed to move the trial out of Monroe County to Ontario County. wwAnthony responded as expected: She immediately launched a lecture tour in Ontario County.

Trial and Sentence of her trial. The second-floor courtroom was filled to capacity.‡

wwOn June 17, 1873, Anthony walked up the steps of the Canandaigua courthouse on the opening day

‡ The spectators at Anthony’s trial included a former president, Millard Fillmore, who

had traveled from Buffalo. 51

Lecture 5  The Trial of Susan B. Anthony

wwThe main factual argument that the defense hoped to present was that Anthony reasonably believed that she was entitled to vote and therefore could not be guilty of the crime of knowingly casting an illegal vote.

essential to women receiving fair treatment from legislatures, and he insisted that the Fourteenth Amendment gave women the legal right to vote. wwCrowley followed with a two-hour response for the prosecution.

wwIn its rebuttal, the prosecution called to the stand an assistant US attorney who had attended an earlier hearing in which Anthony testified about her registration and vote. The assistant US attorney stated that Anthony testified at that time that she did not consult Selden until after registering to vote. Selden, after conferring with Anthony, agreed that their meeting took place immediately after her registration, rather than before.

wwThen, Judge Hunt drew from his pocket a paper and began reading an opinion—apparently an opinion that had been prepared before the trial even started. wwHunt read, The Fourteenth Amendment gives no right to a woman to vote, and the voting by Miss Anthony was in violation of the law.

wwThe judge rejected Anthony’s argument that her good faith precluded a finding that she knowingly cast an illegal vote:

wwAnd that was it for the evidence. Then the legal arguments began. wwSelden opened his three-hourlong argument for Anthony by stressing that she was prosecuted purely on account of her gender. He stressed that the vote was

Assuming that Miss Anthony believed she had a right to vote, that fact constitutes no defense if in truth she had not the right.


Lecture 5  The Trial of Susan B. Anthony

wwHunt then surprised Anthony and her attorney by directing a verdict of guilty:

petitioned to Congress to remit the fine, but her petition was never acted upon. No serious effort was ever made by the government to collect.

Upon this evidence I suppose there is no question for the jury and that the

jury should be directed to find a verdict wwAnthony tried to turn her trial

and conviction into political gains for the women’s suffrage movement. She ordered 3,000 copies of the trial proceedings printed and distributed them to political activists, politicians, and libraries.

of guilty.

wwHad the jurors had an opportunity to speak, there is reason to believe that Anthony would not have been convicted.

wwAnthony was sentenced the next day by Hunt: “The sentence of the wwIn the eyes of some, the trial Court is that you pay a fine of one elevated Anthony to the status of hundred dollars and the costs of the martyr; in the eyes of others, the prosecution.” her status was diminished to that of a common criminal. Many in the press, however, saw Anthony wwAnthony protested: as the ultimate victor. One New York paper observed, May it please your honor, I shall never pay a dollar of your unjust penalty […]. And I shall earnestly and

If it is a mere question of who got the

persistently continue to urge all women

best of it, Miss Anthony is still ahead.

to the practical recognition of the old

She has voted and the American

revolutionary maxim, that “Resistance

Constitution has survived the shock.

to tyranny is obedience to God.”

Fining her one hundred dollars does not rule out the fact that […] women

wwTrue to her word, Anthony never paid a penny of her fine. She

voted, and went home, and the world jogged on as before. 53

Lecture 5  The Trial of Susan B. Anthony

By August 1920, 14 years after the death of Susan B. Anthony, 35 states had ratified the Nineteenth Amendment, giving women the right to vote. But 36 states were needed to make it part of the Constitution. Four states, for various reasons, could not take the issue up that year; the remaining states had rejected it. It all came down to Tennessee, where the question hinged on the vote of a single legislator: 24-year-old Harry Burn. Many people figured Burn, who came from a conservative district, as a no vote. But Burn had a letter in his suit pocket. It was from his mother. It asked him to be “a good boy” and vote for the amendment. When the time came, Burn called out “aye.”

READINGS Gordon, ed., The Selected Papers of Elizabeth Cady Stanton and Susan B. Anthony. Ward and Burns, Not for Ourselves Alone.


Lecture 6

The Trial of the Haymarket Eight


 the years after the Civil War, most laborers n plugged away from sunrise to sundown. This took a heavy toll, and labor leaders began to rally workers around the cause of an eight-hour workday. The issue galvanized the American labor movement. The number of unions in cities such as Chicago doubled in less than a year. And in 1867, Illinois Governor Richard Oglesby signed America’s first eight-hour law. But when the new law took effect, many large Chicago employers simply refused to comply. Police aided employers in suppressing the resulting worker unrest. The hard-won legislative victory was rendered meaningless. Meanwhile, booming Chicago glided into the Gilded Age. It was a period of excess, when capitalists raked in huge profits with the help of cheap immigrant labor.


Lecture 6  The Trial of the Haymarket Eight

Labor Tensions wwBy the early 1880s, labor tensions were at the boiling point in Chicago. Labor activists, many of them socialists, became convinced that direct military action was the best hope of workers. They published pieces complaining that as wealthy businessmen lived opulently, workers suffered and unemployment rose. Membership in Chicago’s militant unions swelled.

50,000 employees won shorter workdays when the city council approved an eight-hour day for city workers.

wwBut labor conditions at various plants around Chicago remained tense. Nowhere were conditions more combustible than at the McCormick Reaper Works, whose hard-nosed owner, Cyrus McCormick Jr., ordered a lockout at the factory in response to a union plan to call for a strike. Management hired replacement wwIn the early spring of 1886, worker workers and arranged for an army unrest around the country of 400 police officers to guard the reached unprecedented levels—a strikebreakers. movement so sudden and pervasive that historians would come to give it the label the Great wwWhen the plant reopened, Upheaval. But no place would play striking workers gathered near a more pivotal role in the Great the factory. They listened to Upheaval than Chicago. speeches by Albert Parsons, a key activist in the labor movement, and Michael Schwab, a reporter wwOn the national eight-hour strike for the most widely circulated and day of May 1, about 60,000 radical newspaper in America: the workers in Chicago left their jobs. German Arbeiter Zeitung, which The day ended without violence. translates simply to “Worker Newspaper.” wwMomentum seemed to be working in labor’s favor. In Chicago, nearly 56

Lecture 6  The Trial of the Haymarket Eight

wwTwo days later, the idealistic manager of the Arbeiter Zeitung, August Spies, addressed several thousand workers near the plant gates. He attended socialist lectures and recruited laborers for the Workingmen’s Party.

the end of a shift. As if on cue, many of the workers hurried off to heckle the replacement workers leaving the factory. A patrol wagon and 75 police officers rushed in to protect the replacement workers. When some hecklers began to throw rocks, police responded with gunfire. Two strikers were killed.

wwWhile Spies was speaking, the factory bell sounded, signaling

The Haymarket Riot wwThe incident left Spies furious. He wrote and published a leaflet called “Revenge! Workingmen, to Arms!” that described events at the Reaper Works and ended with the words: “To arms we call you, to arms!” About 1,200 copies of the leaflet were distributed by horseback in working neighborhoods. Some of the inflammatory circulars were dropped off that night at Grief’s Hall, where a group of German anarchists happened to be meeting.

at 7:30 the following night. The place would be Haymarket Square, a bustling area in downtown Chicago. About 25,000 handbills were printed in German and English promoting the Haymarket rally. wwOn the night of May 4, 2,000 to 3,000 workers gathered at the Haymarket. Spies spoke first. He told the crowd that the rally had not “been called for the purpose of inaugurating a riot” but rather to “throw light upon various incidents.” At about 9 p.m., Spies introduced Parsons as the next speaker, who said, “I

wwA motion was made and adopted by the anarchists to hold a rally 57

Lecture 6  The Trial of the Haymarket Eight

am not here for the purpose of rushed off to tell Police Inspector inciting anybody,” but he also John Bonfield that the speaker said, “Americans, as you love was urging violence. liberty and independence, arm, arm yourselves!” When Parsons wwBonfield ordered officers to finished speaking, Mayor Carter Haymarket Square to break up Harrison decided the rally posed the rally. Police Captain William no serious threats to public safety Ward shouted to the crowd, “I and left. command you, in the name of the people of the state of Illinois, immediately and peaceably to wwThe last speaker for the evening disperse!” was labor activist Samuel Fielden. Only about 300 persons remained when Fielden launched into a wwFielden told Ward that the fiery speech. He asked the crowd: gathering was peaceable. But he agreed to end the rally. What matters whether you kill

wwAt that very moment, a sphere whizzed over the audience. It exploded with a roar in a group of police officers. Wounded police fell to the ground.

yourselves with work […] or die on the battlefield resisting the enemy? What is the difference? Any animal, however loathsome, will resist when stepped upon. Are men less than snails or worms?

wwOfficers began firing into the crowd. It was called the Haymarket riot. It lasted only about five minutes. Seven police officers and perhaps five civilians lay dead. More than 60 police officers received serious wounds.

wwAccording to a Chicago Tribune story, members of the crowd began making threats, and “several men had their revolvers in their hands under their coats.” Two detectives in the crowd


Lecture 6  The Trial of the Haymarket Eight

Riot Aftermath wwThe Chicago papers cried out for vengeance. They blamed the mostly immigrant workers believed to have inspired the Haymarket riot.

connect to the rally. They arrested Oscar Neebe, the Arbeiter Zeitung’s assistant manager, and Fielden was picked up the following day. One person the police could not arrest was Parsons, who had fled to Wisconsin.

wwWithout bothering to get a warrant, police searched the offices of the Arbeiter Zeitung. Schwab and Spies were arrested and taken to jail.

Civil liberties took a vacation in Chicago. Police, usually without warrants, ransacked the homes of known socialists and anarchists. They often beat whatever occupants they found there.

wwPolice continued to round up anyone they could plausibly 59

Lecture 6  The Trial of the Haymarket Eight

wwNone of the men arrested by police claimed to know anything about the bomb throwing. Almost all soundly condemned the act.

which they called “a deliberate conspiracy.” The list included Spies, Schwab, Parsons, Lingg, Fielden, and Neebe, along with George Engel, Adolph Fischer, Rudolph Schnaubelt, and William Seliger.

wwPolice continued to search for the bomb thrower. Eight days after the bombing, they arrested Louis Lingg, but the evidence that he was connected to the bombing at Haymarket was sketchy.

wwTwo of those indicted would not be prosecuted. Schnaubelt fled Chicago and was never tried, and Seliger avoided prosecution by turning state’s evidence. That left eight defendants: the “Haymarket Eight.”

wwOn May 27, a Chicago grand jury issued indictments in connection with the Haymarket riot,

The Haymarket Trial The Haymarket trial was a key event in the history of free speech in America. It led to a far less tolerant approach to extreme opinions. wwThe Haymarket trial began on June 21 in the Cook County courtroom of Judge Joseph Gary. Defense lawyer William Black represented the eight defendants—or, rather, seven defendants as the trial opened. Parsons remained in hiding in Wisconsin.

wwOn the opening day of trial, Judge Gary heard and denied defense motions to hold separate trials for each defendant. Then, the courtroom doors opened and Parsons electrified the packed courtroom by walking calmly to his seat with the other seven prisoners. Black had persuaded 60

Lecture 6  The Trial of the Haymarket Eight

Parsons to return, arguing that his fugitive status suggested guilt and complicated his defense of the other defendants.

prosecutor, was that the incident would start a citywide workers’ uprising. wwGrinnell conceded that the actual bomb thrower was not in court. But he told jurors not to let that fact deter them from conviction. In the eyes of the prosecution, mere advocacy of violence was enough to tie a defendant to the murders. Showing anything beyond words was not a necessary part of their proof.

wwThe defendants could not have been pleased with the 12 men chosen as jurors. They were from a pool that had been handpicked by the bailiff, rather than from one randomly selected—a clear deviation from customary practice. None of the jurors selected was an immigrant. None was a laborer, and none professed radical political beliefs.

wwTwo witnesses tied Schwab and Spies directly to the bombing. On the stand, one witness, when asked whether he could identify the man who lit the bomb, pointed his hand directly at Spies and said, “There is the man.”

wwJulius Grinnell gave the opening statement for the prosecution. He claimed that Spies was the mastermind of the bomb plot and that it was his printed words that incited the bomb throwing.

wwA detailed review of the case some years after the trial shows quite convincingly that key prosecution testimony was either bought with bribes or made under threat of torture.

wwGrinnell also suggested that the Grief’s Hall meeting, attended by Engel and other anarchists, authorized the use of bombs at the Haymarket. He claimed that Engel had contacted Lingg about bringing explosives to the gathering. The hope, said the

wwMayor Carter Harrison was the star witness for the defense. He 61

Lecture 6  The Trial of the Haymarket Eight

told jurors that the Haymarket gathering was peaceable. He said he saw no evidence of weapons among those in attendance.

Haymarket circular at a bar. The defense pointed out that six of the defendants were not even in the Haymarket at the time the bomb was thrown and that Spies and Fielden both stood on or near the speaker’s wagon when the explosion occurred.

wwThe defense called witnesses to contradict prosecution testimony that tied Schwab and Spies to the bomb throwing. Witnesses also testified that all the shots wwThe defense urged the jury not to they saw fired after the bomb convict for murder just because came from the police. Then, the the defendants favored unpopular defendants themselves paraded to views or even violent deeds. the witness stand. Words alone should not send a man to the gallows. wwIn its summation, the defense blamed police—and especially wwThree prosecutors presented Inspector Bonfield—for the closing arguments for the state. Haymarket tragedy. It was Francis Walker told jurors that Bonfield’s decision to send 180 the eight defendants were part of heavily armed police officers a vast and evil labor conspiracy to break up a peaceable and that cost the lives of dedicated constitutionally protected rally public servants. George Ingham that led to the deaths of his told jurors they must choose officers. between anarchy and order. And Grinnell warned that freeing the defendants would be taking a wwThe defense pointed to facts dangerous step toward anarchy. that suggested their clients were innocent. In fact, defendant Oscar Neebe sat at the defense wwThe jury retired on the afternoon table for no reason other than of August 19, 1886, to begin its having left a few copies of the deliberations. At 10 o’clock the 62

Lecture 6  The Trial of the Haymarket Eight

next morning, the jury foreman announced the verdict to a crowded courtroom: Seven of the eight defendants were found guilty of murder and had their penalty fixed as death. Neebe was also found guilty but was sentenced to 15 years.*

Oglesby. After listening to final pleas, he announced his decision: The sentences of Fielden and Schwab, who had requested commutation in writing, would be reduced to life in prison; the others, who had not made such a request, would die as scheduled.

wwAppeals followed. The Illinois wwOn the morning of November 11, Supreme Court rejected each of 1887, reporters and other selected the defense objections and upheld witnesses were ushered into a the convictions. The defendants corridor behind the courthouse. appealed to the US Supreme Lingg had committed suicide the Court, arguing that they had day before, but the four remaining been denied due process. The condemned men—Engel, Fischer, court found that there were no Spies, and Parsons—marched substantial federal questions toward the raised gallows and presented in the case. were hanged to death. wwA last-ditch clemency effort garnered 100,000 signatures from American citizens.† Hundreds of telegrams, on both sides of the issue, poured daily into the office of Governor

wwThe Haymarket trial changed the course of lives and American political history. But it also set back the cause of workers’ rights. Samuel Gompers, head of the new American Federation of

* Chicago papers, such as the pro-business Chicago Tribune, reported “universal

satisfaction with the verdict.” † Writers including George Bernard Shaw and Oscar Wilde criticized the trial and

urged mercy. The head of the Chicago bar and various Chicago civic leaders urged the governor to grant at least some of the condemned men clemency. 63

Lecture 6  The Trial of the Haymarket Eight

Labor, said the bomb thrown at Haymarket not only killed policemen, but it also killed the eight-hour movement. Also, rights that workers previously enjoyed— such as the right to hold rallies in public streets—came to an end in

many cities. America headed into an era of industrial violence and union busting. ‡

READINGS Green, Death in the Haymarket. Messer-Kruse, The Trial of the Haymarket Anarchists.

‡ In 1893, a monument was dedicated at the grave site of the Haymarket radicals.

On the day following its dedication, 8,000 people traveled to the cemetery to see the monument. And that same day, Governor John Peter Altgeld announced that he was pardoning the Haymarket defendants. 64

Lecture 7

The Trial of John T. Scopes


 hn Washington Butler was in the congregation o at a Primitive Baptist church in Tennessee when he heard a preacher tell the tale of a young woman whose faith in God was destroyed when she learned about the theory of evolution in a university’s biology course. The father of three boys, Butler— upon discovering that evolution was taught in the high schools of his own county—ran for state representative the following year. Butler won his race. Two years later, Butler wrote the law that a schoolteacher named John T. Scopes would later be charged with violating.


Lecture 7  The Trial of John T. Scopes

The Anti-Evolution Law wwThe law, as Butler drafted it, made Many compared the proposed it “unlawful for any teacher” in legislation to the position taken state-supported schools “to teach by the Catholic Church that led to any theory that denies the story Galileo’s 1633 trial for publishing of the Divine Creation of man as his view that the earth revolved taught in the Bible, and to teach around the sun. instead that man has descended from a lower order of animals.” wwBut anti-evolutionists were Teachers who violated the law also aroused. Fundamentalist were subject to a maximum fine evangelist Billy Sunday came to of 500 dollars. Memphis in February 1925. He praised the Tennessee House for having the courage to take wwSix days after Butler introduced “action against that God forsaken his anti-evolution bill, the gang of evolutionary cut-throats.” Tennessee House passed it on And he urged the Senate to do a vote of 71 to five. No public the same. hearings preceded the vote, and the action was taken with almost no discussion. There was wwThe Tennessee Senate—ignoring a request to hold the bill over the heckling of Vanderbilt for debate. But Butler said, “I do University students in the not see the need for any further galleries—approved Butler’s talk, as everyone knows what bill and sent it on to Governor evolution means.” Austin Peay, who signed the Butler bill into law. “The people must have the right to regulate wwNot everyone in Tennessee what is taught in their schools,” agreed with Butler’s view on the Peay said. value of debate. Letters poured in to the editors of state papers.


Lecture 7  The Trial of John T. Scopes

A Test Case wwGeorge Rappleyea, a 31-year-old engineer and resident of Dayton, Tennessee, resolved to fight the new Butler Act. He wrote a letter critical of the Butler Act to the Chattanooga Times and then read a story in that same paper that spurred him to action. The story reported that the ACLU was seeking a teacher to test the antievolution law in the courts.

of whom saw the test case as providing a potential boost to the town’s recently troubled economy. wwRobinson spotted a high school student, whom he asked to locate and bring back John T. Scopes, a 24-year-old general science instructor and football coach at the high school. After Scopes showed up at the drugstore, Rappleyea said, “John, we’ve been arguing, and I said that nobody could teach biology without teaching evolution.” “That’s right,” Scopes agreed.

wwRappleyea trotted off to Fred E. Robinson’s fountain and drugstore, the favorite gathering spot for the town’s movers and shakers. He found Robinson, who doubled as the chairman of the Rhea County school board, and described his plan to test the Butler Act in Dayton’s own Rhea County courthouse. He’d need a teacher to volunteer to serve as a defendant in the test case, and if he could find one, he’d contact the ACLU in New York.

wwScopes added that the book he used, George William Hunter’s A Civic Biology, included a unit on the subject. He said he used the book while filling in for the school’s regular biology teacher during his recent illness. “Then you’ve been violating the law,” said Robinson. And then Rappleyea asked Scopes whether he’d “be willing to stand for a test case.” Scopes said he would.

wwRappleyea’s idea found considerable support among Dayton’s leading citizens, many


Lecture 7  The Trial of John T. Scopes

wwRappleyea wired the ACLU in New York: “WIRE ME COLLECT IF YOU WISH TO COOPERATE AND ARREST WILL FOLLOW.” The ACLU replied that it would defend Scopes if he were arrested. Rappleyea spotted a deputy sheriff walking on Dayton’s main street and handed him the warrant demanding the arrest of Scopes. The legal machinery that would produce America’s strangest and most enduring trial was in motion.

John T. Scopes

The Fundamentalist Movement wwThe leading figure in the fundamentalist movement in America in 1925 was William B. Riley. When word reached him of the ACLU’s challenge to the Tennessee anti-evolution law, he plotted the law’s defense. Riley considered William Jennings Bryan to be the movement’s greatest orator, and Riley asked him to join the prosecution team on behalf of the association. Bryan accepted the invitation.

wwBryan thought the Constitution was on the side of the Butler Act. “Under the pretense of teaching science,” he argued, “instructors who draw their salaries from the public treasury are undermining the religious faith of students by substituting belief in Darwinism for belief in the Bible.” Just as the Constitution prohibits the teaching of religion at public expense, so, too, it should prohibit the teaching of irreligion.


Lecture 7  The Trial of John T. Scopes

Why, Bryan asked, should Christians tax themselves to pay teachers to exploit guesses and hypotheses as if they were true?

wwThe trial, as Darrow saw it, provided the opportunity “to focus the attention of the country on the program of Mr. Bryan and the other fundamentalists in America.” Religious “fanaticism,” as he called it, threatened public education and the spirit of inquiry that sustained civilization.

wwDefendants usually select their own attorneys, but in the Scopes case, the ACLU—as the organization that would pay the defense bills—would do the ultimate choosing. They selected Clarence Darrow, who was known to fight his battles not just for his clients, but also for the hearts and minds of the American people.

Darrow described the upcoming trial apocalyptically in remarks shortly after his arrival in Dayton: “Scopes isn’t on trial; civilization is on trial.”

The Scopes Trial wwThe Scopes trial opened on jury of 12 men, mostly farmers, July 10, 1925. Scopes sat in the was quickly selected. The trial front row between his father adjourned for the weekend. and George Rappleyea. John Washington Butler sat nearby in wwWhen the court reconvened the same row. The proceedings the following Monday, Judge opened, over Darrow’s objections, Raulston heard arguments on with a prayer. Judge John the defense motion to quash Raulston then read the Butler the indictment of Scopes on Act. Then, he read the first the grounds that the Butler Act chapter of Genesis. After a grand violated the Constitution. The jury returned an indictment, a motion went to the heart of the


Lecture 7  The Trial of John T. Scopes

defense’s strategy. The defense’s goal was not to win acquittal for Scopes but to take the case to a higher court—preferably the US Supreme Court—and have it declare that anti-evolution laws were unconstitutional.

prohibit teaching the Copernican theory that the earth revolves around the sun. And according to Hays, “Evolution is as much a scientific fact as the Copernican theory.”

wwDarrow then took up Hays’s argument. He insisted that curricular decisions must be “within reason” to satisfy constitutional standards. Could Tennessee tell its teachers they were only to teach religion? Could it drop from the curriculum all mention of arithmetic, geography, and writing? Darrow next argued wwSue Hicks, a local member of that Butler and the legislature of the prosecution team, went on Tennessee tried to “grab science to ridicule the defense claim by the throat and throttle it to of unconstitutionality. It is death.” But according to Darrow, “perfectly ridiculous,” she argued, the attempted murder of science “to say that a teacher […] can go must fail. The Constitution in and teach any kind of doctrine stands as “the flaming sword to he wants.” What if a teacher hired protect the rights of man against to teach arithmetic decided he ignorance and bigotry.” would rather teach architecture? wwRepresenting the State of Tennessee, Attorney General Thomas Stewart argued that the law was a straightforward exercise of the right of the state legislature to determine what is taught in public schools.

wwArthur Garfield Hays, speaking for the defense, contended that the state’s argument went too far. Surely, Tennessee could not

wwAs expected, Judge Raulston denied the defense motion to quash the indictment. The trial would go on.


Lecture 7  The Trial of John T. Scopes

wwAfter opening statements that presented the trial as a titanic struggle between good and evil or truth and ignorance, the prosecution opened its case. Superintendent Walter White led off the short list of prosecution witnesses. He testified that Scopes had admitted teaching about evolution from Hunter’s Biology.

witness. After some introductory questions, Darrow asked Metcalf, “Do you know any scientific man in the world that is not an evolutionist?” Stewart leaped to his feet to object. Judge Raulston sustained the objection but allowed Metcalf to privately tell the court reporter and attorneys what his answer would have been to Darrow’s question. Metcalf said that “practically all of the zoologists, botanists, and geologists of this country […] believe evolution is a fact.”

wwStewart then asked seven students in Scope’s class a series of questions about what Scopes said and about what they read on the subject of evolution. wwStewart then made a general Drugstore owner Robinson objection to any scientific testified as to Scope’s statement testimony on the question of that “any teacher in the state who evolution: was teaching Hunter’s Biology was violating the law.” The We are excepting, your honor, to prosecution rested. everything that pertains to evolution or tends to show that there might or

wwDarrow called zoologist Maynard Metcalf as the defense’s first

might not be a conflict between the story of divine creation and evolution.

The theory of evolution fit well into Darrow’s pessimistic philosophy of life. He saw abundant evidence of pain and uncaring cruelty in the world, much as Darwin saw nature in general as characterized by the relentless struggle for survival. 71

Lecture 7  The Trial of John T. Scopes

wwDarrow got hot. He pointed out that only one person on the jury ever read anything about evolution. How could the jury intelligently decide the case without the expert testimony?

wwFor the defense, Hays argued that evolution “is just as well substantiated” as the Copernican theory and that the defense has the right to present experts to show that.

wwAfter listening to the hotter and hotter protests from the prosecution, the judge excused the jury. Then, he told the attorneys that he considered the question of the admissibility of the scientific evidence “the most difficult thing the court is going to pass on.”

wwThe next day, Judge Raulston announced his ruling. He said the Butler Act contained no ambiguous words or complex terms that required the guidance of experts. As a result, “the court is content to sustain the motion of the attorney-general to exclude the expert testimony.”

wwWith the jury absent, Darrow continued his questioning of Dr. Metcalf. But the jury would never hear any of it.

wwOn the seventh day, with the trial moved outside to the courthouse lawn, Raulston asked the defense if it had any more evidence. What followed was nothing short of amazing. Hays asked that William Jennings Bryan be called to the stand as an expert on the Bible. Bryan agreed, over the protests of his prosecution colleagues, and took a seat on the witness stand.

wwThe next day, the defense’s team of assembled scientists watched attorneys argue. Stewart said the act “interprets itself.” Scientific testimony is irrelevant. It doesn’t matter whether evolution is true or false. He accused the defense of trying “to prove what is the law wwIn his interrogation of Bryan, is not the law.” Darrow pointed to one miracle after another in the Bible and 72

Lecture 7  The Trial of John T. Scopes

demanded to know whether Bryan believed each miracle actually happened. Did Joshua make the sun stand still? Was Eve “literally made out of Adam’s rib”? The exchanges became testy, and Raulston adjourned court. The next day, he agreed to strike all of Bryan’s testimony from the record.

court, the fine should have been set by the jury, not Raulston. The court dismissed the case, writing: “Nothing is to be gained by prolonging the life of this bizarre case.”

wwThe Scopes trial by no means ended the debate over the teaching of evolution, but it did represent a significant setback for the anti-evolution forces. wwThe trial was nearly over. Of the 15 states with antiDarrow asked the jury to return evolution legislation pending in a verdict of guilty in order that 1925, only two states (Arkansas the case might be appealed to and Mississippi) enacted laws the Tennessee Supreme Court. restricting the teaching of The jury complied with Darrow’s Darwin’s theory.* request, and Judge Raulston fined Scopes 100 dollars.


Ginger, Six Days or Forever?

wwA year later, the Tennessee Supreme Court reversed the decision of the Dayton court on a technicality—not the constitutional grounds as Darrow had hoped. According to the

Larson, Summer for the Gods. Mencken, A Religious Orgy in Tennessee. Scopes and Presley, Center of the Storm.

* Darrow would not live to see the US Supreme Court address the question of bans on

the teaching of evolution, but Scopes would. The day did not come until 1968. The case that decided the matter is Epperson v. Arkansas, in which the US Supreme Court voted to strike down the ban on teaching evolution. It said the law lacked a secular purpose and therefore violated the First Amendment’s Establishment Clause. 73

Lecture 8

The Sweet Trials, Race, and Self-Defense


e troit seemed to Dr. Ossian Sweet a good place to launch a medical practice in 1921. Henry Ford was paying workers more than six dollars a day. Migrants were flocking to Detroit. Many were, like Dr. Sweet, African Americans from the South. Only 50 doctors served the booming black population, and Ossian’s practice quickly became successful. Sweet married Gladys Mitchell, a middle-class black woman, in 1922, and a few years later, they bought a brick bungalow on Garland Avenue in a white neighborhood. But before they could move in, something happened that gave them pause.


Lecture 8  The Sweet Trials, Race, and Self-Defense

Rising Racial Tensions wwOn the morning of June 23, 1925, Dr. Alexander Turner, a black surgeon, and his wife moved into an expensive brick home in northwest Detroit. When Turner’s moving van pulled up, a crowd of whites formed. Some in the crowd threw potatoes at painters working on the house. Then, a brick shattered one of Turner’s windows. By evening, hundreds of people surrounded the Turner home, stalling traffic all around.

another African American family, the Fletchers, the day after they moved into a white neighborhood. Police did nothing when people began hurling chunks of coke at the home. The damage mounted. By the next day, when the Fletchers moved out, there was not a single window in their house left intact.

wwThat same day, 10,000 Ku Klux Klansmen rallied around a fiery cross on West Fort Street in Detroit. They listened to a speaker demand laws to keep wwTwo men, calling themselves blacks confined to designated representatives of a neighborhood sections of the city. “improvement association,” worked their way to Turner’s front door. They asked Turner, wwThree days after the Fletcher “Will you sell the property back incident, an overflow crowd to us?” Turner answered, “Yes.” gathered at a school diagonally Police escorted Turner and his across from the house the Sweets wife and her mother to his car. had purchased. Signs posted on As Turner’s sedan pulled away, utility poles announced the first a barrage of bricks and stones meeting of the Waterworks Park crashed through the car windows, Improvement Association. The cutting Turner over the right eye. advertisements asked, “Do you want to see your neighborhood kept up to its present high wwThe next month, a crowd standard?” The head of the gathered around the home of 75

Lecture 8  The Sweet Trials, Race, and Self-Defense

to do whatever is necessary to preserve your neighborhood— even if that meant violence.

group responsible for evicting Dr. Turner spoke at the meeting, saying that you must be willing

Assault on the Sweet Home wwSweet was determined not to as well as the alleys and the let bigotry prevent him from porches of nearby houses. Cars achieving his goals. He notified parked two deep jammed the police that he planned to move surrounding streets. into his new home at 2905 Garland on Tuesday, September 8. wwAt about 8:15 p.m., a taxi pulled up. Otis Sweet and a friend got out. The two fled into the house wwSweet expected trouble. He asked under a barrage of stones and relatives and acquaintances to other missiles. Threats and spend the first few days at his new racist taunts came from the home. Two of Ossian’s brothers, crowd. Ossian opened the door, Dr. Otis Sweet and Henry Sweet, and they raced in. They pulled agreed to stand with him. down the blinds. Something hit a window and it shattered. The wwBy evening, things got tense. male occupants of the house A crowd gathered around the grabbed weapons and scattered home. People looked into the to different parts of the house. house, pointed, and talked with Someone turned the lights out. neighbors. At midnight, some Then, gunshots rang out— 500 to 800 people still mingled perhaps a dozen or so—from outside. Not until near daybreak both the upper and lower floors. did the last of the crowd leave. Outside the house, there were screams. People started running. wwThe next evening, a crowd filled the schoolyard across the street, 76

Lecture 8  The Sweet Trials, Race, and Self-Defense

Two members of the crowd lay on the ground, wounded. wwPolice handcuffed all 11 occupants of the home and took them to the downtown police station, where they found out that one member of the crowd, Leon Breiner, had been killed, and another man had been seriously wounded.

They told wildly disparate stories. Ossian Sweet admitted distributing guns to each of the male occupants. The only person who admitted firing a gun was Henry Sweet. He said he fired two shots, though he claimed to have fired over—not at—the crowd. Police charged all 11 with premeditated murder.

wwThe Sweets’ request for a lawyer was denied. For the next six hours, teams of police separately questioned all 11 suspects.

Henry Sweet later said, “It looked like death if we tried to hide, and it looked like death if we tried to get out. We didn’t know what to do.”

Representation and Trial wwIn the early fall of 1925, Clarence Darrow and his cocounsel in the Scopes case, Arthur Garfield Hays, visited their clients in jail. They told stories that “didn’t wholly jibe,” Darrow said. The attorneys attributed this to “a very human desire to support their original and inept stories.”

plausible. This was a good thing, too, as the trial was on a fast track. It would open on October 30th before Judge Frank Murphy.

wwProsecutor Robert Toms did not know which of the defendants fired the fatal bullet, so he was forced to rely on a conspiracy theory. The prosecution would try to prove that the defendants wwOver a series of interviews, reached an agreement among Darrow and Hays’s clients’ stories themselves that one or more of became more consistent and more 77

Lecture 8  The Sweet Trials, Race, and Self-Defense

them would shoot to kill in the event of trespass or threatened damage to the house.

scene. Alonzo Smith, a black passenger in a car that passed through Garland Avenue at about 8:00 p.m., testified that members of the mob bombarded the car with stones and lumps of cement. As he got out of the car, Smith testified, “We heard people yelling, ‘Kill him. He’s going to the Sweets.’”

wwProsecution witnesses painted a picture of a warm summer evening in a quiet neighborly community and minimized the size of the crowd. Police officers called by the prosecution claimed that the shooting erupted without provocation. wwDarrow knew that the case could only be won if the jury understood what was going on in wwA neighborhood witness testified the heads of the defendants. He that the bullet that killed Breiner knew that the jury most likely saw struck him in the back as he stood on a neighbor’s porch, smoking a pipe. After presenting his 70 witnesses, Toms told the jury that the case was a simple one: Leon Breiner, peacefully chatting with his neighbor at his doorstep enjoying his God-given and inalienable right to live, is shot through the back from ambush. You can’t make anything out of these facts, gentlemen of the defense, but cold-blooded murder.

wwThrough a series of defense witnesses, Darrow presented a very different version of the

Clarence Darrow


Lecture 8  The Sweet Trials, Race, and Self-Defense

Dr. Ossian Sweet as the principal villain in the tragedy. Fortunately, Ossian was dignified, articulate, and intelligent. He made a good witness.

Frightened, and after getting a gun, I ran upstairs. Stones kept hitting the house intermittently. I threw myself on the bed and lay there a short while— perhaps fifteen or twenty minutes— when a stone came through a window.

Part of the glass hit me. wwUnder questioning by Hays, Sweet told the jury about his encounters with racism while growing up as wwThen, Sweet described the a black man in America. He spoke pandemonium that followed: of lynchings, horrible deaths by fire, and black men being Everyone was running from room to taken from the police that were room. There was a general uproar. supposedly guarding them. He […] Stones kept coming faster. I was also told the story of Dr. Turner downstairs. Another window was and his attempt to move into a smashed. Then one shot. Then eight or white Detroit neighborhood. All ten from upstairs; then it was over. these events, he said, weighed on his mind the night of the wwHays asked Sweet to describe his shooting. state of mind at the time of the shooting: wwHays next brought Sweet to the evening of September 9. He When I opened the door and saw the testified that “we were playing mob, I realized I was facing the same mob that had hounded my people cards about eight o’clock” throughout its entire history. […] I was when “something hit the roof. filled with a peculiar fear, the kind no Somebody went to the window one could feel unless they had known and I heard them remark, ‘The the history of our race. I knew what people! The people!’” Next, mobs had done to my people before. he said:


Lecture 8  The Sweet Trials, Race, and Self-Defense

wwIn his summation, Darrow told the all-white jury:

Toms brought attention back to the person he saw as the innocent victim in the case. “Breiner was killed because he was indiscreet enough to stop in front of a house where some Negroes wanted to live.” The “one civil right more important than all the others,” Toms told the jury, “is the right to live.”

If this had been a white crowd defending their homes, who killed a member of a colored mob, no one would have been arrested, no one would have been on trial. My clients are here charged with murder, but they are really here because they are black.

wwOn the day before Thanksgiving, the case went to the jury. Deliberations began and continued for days. Finally, Judge Murphy released the jury and declared a mistrial. The case was put on the calendar for retrial.

Sweet was a hero, Darrow said, not a criminal.

wwToms, closing for the state, told the jury “it isn’t your business to settle” racial tensions in Detroit.

Retrial and Verdict wwA defense request for separate trials was granted.* The state chose to try first Henry Sweet, who had admitted that he had fired out of the front window.

wwHenry’s trial started on April 19, 1926. In his opening statement, Darrow told the jurors: “I don’t know who killed Breiner. Perhaps it was Henry Sweet. I can’t tell,

* The streets of Detroit remained calm as Darrow began preparations for the second

trial. There was, however, one ugly incident. An unidentified white man tried to burn down Dr. Sweet’s house. The man ran from the premises after the fire started and was never apprehended. The house was placed under police guard. 80

Lecture 8  The Sweet Trials, Race, and Self-Defense

and [Mr. Toms] can’t.” He stated that the defense would show that Henry had attempted to protect his brother’s home. Whatever shots were fired were done so in self-defense.

Why was [Breiner] there? He was there just the same as the Roman populace were wont to gather at the Colosseum where they brought out the slaves and the gladiators and waited for the lions to be unloosed.

wwThe prosecution paraded its many wwDarrow argued that the shooting witnesses before the jury. Then, was justified: Darrow argued Henry Sweet’s cause for more than seven hours. No man lived a better life or died a He borrowed from his summation better death than fighting for his home in the first trial but shifted his and his children. […] Instead of being emphasis and approached the here under indictment, for murder, they should be honored for the brave issue of race head-on. In the first stand they made, for their rights trial, the risk of offending a white and ours. juror tempered his remarks. But in the second trial, he threw caution to the wind. wwOnce Darrow ended his summation, Judge Murphy instructed the jury that Henry You need not tell me you are not Sweet should be found guilty if he prejudiced. I know better. We are not aided and abetted in a felonious very much but a bundle of prejudices anyhow. We are prejudiced against assault on the crowd, even if he other peoples’ color. Prejudiced against did not fire the bullet that killed other men’s religion; prejudiced Breiner. But Sweet should be against other peoples’ politics. found not guilty if he fired in the good faith and reasonable belief that it was necessary to repel “a wwDarrow asked the jury to consider riotous attack” on the home. whether the shooting victim bore some responsibility for his own death. 81

Lecture 8  The Sweet Trials, Race, and Self-Defense

wwIn evaluating whether a reasonable man might have “an honest belief in danger,” Judge Murphy said, the jury should consider all the circumstances, including the defendant’s “situation, his race and color.”

wwDarrow demanded that charges be dropped against the 10 remaining defendants. He argued that if the prosecution couldn’t convict Henry Sweet, they had no chance of convicting anyone else. After more than a year of indecision, Toms agreed to dismiss all charges.‡

wwThe jury debated the fate of Henry Sweet through the afternoon. Then, at 4:59, came a loud knocking on the jury door. The courtroom filled to hear the verdict: “not guilty.”†

READINGS Boyle, Arc of Justice. Darrow, “You Can’t Live There!” Haldeman-Julius, “Clarence Darrow’s Defense of a Negro.”

† Darrow told the press, “The verdict meant simply that the doctrine that a man’s

house is his castle applied to the black man as well as the white man. If not the first time that a white jury had vindicated this principle, it was the first time that ever came to my notice.” ‡ Ossian Sweet and his family moved back into their home on Garland in 1928.

Sweet would sell the house 30 years later. 82

Lecture 9

Jehovah’s Witnesses and Flag-Salute Cases


e tween 1938 and 1946, the Supreme Court handed down no less than 23 opinions involving civil liberties issues raised by Jehovah’s Witnesses. Two of those cases deal with the question of whether Jehovah’s Witnesses in public schools can be forced to salute the flag and recite the Pledge of Allegiance. And one of them, Barnette, is a landmark decision that represents a turning point in the court’s willingness to protect civil liberties.


Lecture 9  Jehovah’s Witnesses and Flag-Salute Cases

Jehovah’s Witnesses wwIn the early to mid-1930s, Jehovah’s Witnesses in Germany refused to give the Hitler salute. They believed that the salute was a form of idolatry and that it violated the command of Exodus 20.* Because of their refusal to pay tribute to the Third Reich, some 1,500 German Witnesses would die over the next decade. Many more would spend years in concentration camps.

wwThe similarity in 1935 was especially disturbing. At that time, the common way to honor the flag while reciting the Pledge of Allegiance was not, as today, to place one’s hand over one’s heart; rather, as in Germany, the custom was to offer a military salute and then extend the arm forward at eye level toward the flag.

wwIn Rutherford’s speech at the 1935 annual convention of Jehovah’s Witnesses in Washington DC, wwJoseph Rutherford, president he said that saluting the flag of the Jehovah’s Witnesses’ showed unfaithfulness to God. governing body, looked at what He said that in light of what was was happening in Germany and happening in Germany, it was saw that there were lessons for something he could no longer American Witnesses. Rutherford do. It was a position that would saw a parallel between the Hitler have significant consequences for salute and the American tradition many Witnesses in America. of saluting the flag.

* Chapter 20 of the Book of Exodus says: “Thou shalt not make unto thee any graven

image, or a likeness of anything that is in heaven above, or that is in the earth below, or that is in the water under the earth. Thou shalt not bow down to them, nor serve them: for I the Lord thy God am a jealous God.” 84

Lecture 9  Jehovah’s Witnesses and Flag-Salute Cases


Lecture 9  Jehovah’s Witnesses and Flag-Salute Cases

Gobitis wwIn Minersville, Pennsylvania, in the home of Walter and Ruth Gobitis, the flag salute became a topic of much conversation. Lillian, at age 11, was the oldest of six Gobitis children. Like other Jehovah’s Witnesses, she traveled door to door with testimony cards and literature. Witnesses considered proselytizing a duty they owed God.

was punched in the process by a member of a mob. A crowd of hundreds gathered at the fire house, trying to break down the doors. wwWhen school opened in the fall of 1935, Lillian and her younger brother, Billy, agreed they would not salute the flag or recite the Pledge of Allegiance at school. On October 22, Billy Gobitis came home from school and announced, “I stopped saluting the flag.” He said, “The teacher tried to put up my arm, but I held on to my pocket.”

Joseph Rutherford told Jehovah’s Witnesses, “Advertise, advertise, advertise the King and his Kingdom!” But it wasn’t always easy. The attacks of Witness leadership on “the hypocrisy” of other religions and what Rutherford called the “harlot” Roman Catholic Church made them enemies. And many found their constant evangelizing annoying.

wwInspired by her brother’s courage, Lillian told her teacher the next morning that she would have to stop saluting the flag because it violated her faith. “We can’t have any other gods before Jehovah God,” she said. Her teacher was supportive. When the other students stood to salute the flag, Lillian took her seat and remained silent. Lillian recalled, “Soon everyone was staring at me, but I felt elated.”

wwLillian was among 40 Witnesses going door to door in New Philadelphia, Pennsylvania, one day in 1935. After receiving complaints, police rounded up the Witnesses and put them in cells in the fire house. Lillian 86

Lecture 9  Jehovah’s Witnesses and Flag-Salute Cases

wwFor two weeks, as Lillian, Billy, wwThe school board was unmoved. and one other child Witness It voted unanimously to refused to salute the flag, require all students to salute school authorities did nothing. the flag and recite the Pledge But Charles Roudabush, the of Allegiance. Just minutes superintendent of the Minersville after the rule was adopted, School District, was angry. He Superintendent Roudabush made asked the state’s Department of an announcement: Public Instruction for authority to punish the children. After I hereby expel from the Minersville consulting with the state attorney schools Lillian Gobitis, William general, the department told Gobitis, and Edmund Wasliewski for Roudabush he had authority this act of insubordination, to wit, to punish the children if failure to salute the flag in our school they violated an established exercises. school rule. wwWhen Walter Gobitis left the meeting, he stopped to yell back wwRoudabush quickly convened a at Roudabush: “I’m going to take school board meeting to adopt a you to court for this!” rule requiring that students salute the flag. Walter Gobitis appeared at the meeting to argue against wwRepresented by the Witness’s adoption of the rule. “We are not national legal counsel, Gobitis desecrating the flag. We show no filed a complaint in federal disrespect for the flag, but cannot district court in Philadelphia. salute it. The Bible tells us this, The complaint alleged that the and we must obey.” Both Lillian expulsion of Lillian and Billy and Billy Gobitis wrote letters to violated their rights to freely the school board echoing their exercise their religion and to father’s views. “I do not salute the be free from cruel and unusual flag because I have promised to punishment. do the will of God,” wrote Billy. 87

Lecture 9  Jehovah’s Witnesses and Flag-Salute Cases

wwFederal Judge Albert Maris rejected the school board’s effort to dismiss the complaint and set the case for trial. Walter Gobitis and his children each testified. Walter described how he taught his children to read the Bible and follow its commands strictly. Both Lillian and Billy cited a number of Bible verses in support of their refusal to salute.

wwRoudabush vowed to appeal the decision to the Third Circuit Court of Appeals. Pending the appeal, Judge Maris’s injunction was stayed. This meant no public school for the Gobitis children. They spent the first few weeks of school studying at home, until Roudabush threatened to send them “to reform school” if they weren’t taught by a qualified teacher.

wwThe only witness for the school board was Roudabush, who called wwThe Gobitis children weren’t the views of the Gobitis children alone in their dilemma. In their “perverted” and claimed they had corner of Pennsylvania, at least been “indoctrinated.” 40 other Witness children had been thrown out of schools for failing to salute the flag. The wwJudge Maris sided with the problem was solved when a Gobitis family. The judge wrote, Witness couple converted their “The refusal of these two earnest farmhouse into a school, called Christian children to salute the Kingdom School, for 40 the flag cannot even remotely students, grades one to eight. prejudice or imperil the safety, health, morals, property, or personal rights of their fellows.” wwThe Third Circuit gave another He congratulated Lillian and Billy sweeping victory to the Gobitis on their “sincerity” and their family. The court’s 1939 decision “sturdy independence of thought explicitly compared the flag and action.” The judge called the salute to the Hitler salute. school policy “utterly alien to the genius and spirit of our nation.” 88

Lecture 9  Jehovah’s Witnesses and Flag-Salute Cases

wwRoudabush and the school district decided to fight on— to the Supreme Court of the United States.

School District v. Gobitis. He wrote that the school board’s policy was valid and the expulsions could stand and that the court should not become “the school board for the country.” The Gobitis children might have rights, but so do local communities, and judges shouldn’t meddle.†

wwThe court took the case. The Gobitis children traveled to Washington to hear oral arguments in April 1940. Joseph Rutherford argued the case for the family. His oral argument wwLillian Gobitis and her mother was thin on the law and more learned about the decision on the closely resembled a sermon. radio. It never occurred to Lillian But fortunately for the Gobitis she could lose the case. family, the court had also granted argument time to a lawyer for the wwThings would soon get worse for ACLU whose argument raised the Jehovah’s Witnesses around the relevant constitutional objections country—much worse. It seemed to the school board policy. to some that the Supreme Court had declared open season on Witnesses. Some Americans got wwThe court’s consideration of the it in their heads that Jehovah’s Gobitis case came at Europe’s Witnesses were unpatriotic and darkest hour. Justice Felix were attempting to undermine Frankfurter, a Jewish immigrant the war effort. from Vienna and a patriot, wrote the majority opinion in Minersville

† The war in Europe had a lot to do with Frankfurter’s take on the Gobitis case. As he

saw it, during wartime especially, authorities had a legitimate interest in promoting national unity. And making school kids stand up and salute the flag might help promote that unity. 89

Lecture 9  Jehovah’s Witnesses and Flag-Salute Cases

Barnette wwIn the month or so after the Gobitis salute case. They would not have decision, Jehovah’s Witnesses were to wait long. ‡ victimized across the country. President Franklin D. Roosevelt wwWest Virginia had adopted a denounced the violence, saying, statewide regulation requiring all “It is pitifully easy to crush out public school children to salute freedom in an overzealous attempt the flag.§ In the Charleston area, to preserve it.” a number of Witnesses had been expelled for violating school flagsalute rules. wwThe violence also attracted the attention of several justices of the Supreme Court. Three of the wwTwo of the expelled children justices who joined the Gobitis were Gathie and Marie Barnette. majority concluded that their Their teacher noticed they hadn’t decision was wrong. They decided saluted the flag and reported them to advertise for another flagto the principal. They were told to either salute the flag or go home.

‡ One of the worst assaults on Jehovah’s Witnesses was in Richwood, West Virginia. A

group of Witnesses went to the office of the town’s mayor, hoping to explain that they were not disseminating “communist literature,” as rumor had it. Instead, the mayor called fellow members of the American Legion to let them know he had “the damned sons-of-bitches.” When the veterans assembled, a deputy sheriff took off his badge and said, “What is done from here on will not be done in the name of the law.” He tied the hands of each Witness and then bound them together in a human rope chain. Each of the Witnesses was forced to drink bottles of castor oil, enough to require later hospitalization. Still roped together, they were marched to their boardinghouse to pick up belongings. At least 500 people followed them. The march then continued to their cars, which had been doused with castor oil—and swastikas were painted on the sides. § Flag salutes in the US after the summer of 1942 no longer typically included the arm

extended outward. Images from Nazi Germany changed that. 90

Lecture 9  Jehovah’s Witnesses and Flag-Salute Cases

wwGathie and Marie continued to show up at school each morning, and each day, they were sent back home.

attorney Hayden Covington said that Gobitis was “one of the greatest mistakes the Court has ever committed” and added that it unleashed a wave of hatred and violence against Jehovah’s Witnesses around the country.

wwThe Barnette children’s uncle helped obtain a lawyer to fight their expulsion. And to the surprise of many, they won an wwThe court announced its decision injunction against the school three months later. Justice Robert board in federal district court. Jackson wrote the opinion of Judge John Parker wrote that it is the court. It stands as one of rare not to follow “an unreversed the most eloquent ever written. decision of the Supreme Court of Jackson wrote: the United States,” but he made an exception here. In light of recent If there is any fixed star in our comments by justices, he called constitutional constellation, it is that the Gobitis decision “impaired no official, high or petty, can prescribe authority.” In his decision for the what shall be orthodox in politics, Barnettes, Parker wrote: nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.

It certainly cannot strengthen the Republic […] to require persons to give

wwJackson said the state had failed to show “that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression.”

a salute which they have conscientious scruples against giving, or to deprive them of an education if they refuse to give it.

wwIn March of 1943, the Supreme Court heard oral arguments in West Virginia State Board of Education v. Barnette. Witness

wwJackson rejected Frankfurter’s arguments that decisions like 91

Lecture 9  Jehovah’s Witnesses and Flag-Salute Cases

this should be left to local communities:

their faith or for other ideological reasons—could no longer be punished.

The very purpose of a Bill of Rights

wwBarnette was a seminal decision in from the vicissitudes of political our constitutional jurisprudence. controversy, to place them beyond the It established the principle that reach of majorities and officials and to the First Amendment prevents establish them as legal principles to be the government from requiring applied by the courts. private citizens to recite or convey any ideological messages they find morally objectionable. wwJustice Frankfurter bitterly In constitutional law circles, dissented, suggesting that the it’s called the compelled speech justices in the majority were doctrine. writing their “private notions of policy into the Constitution.” wwThe compelled speech doctrine has been used by the court wwOnce again, the Gobitis family recently to reach results beyond had traveled to Washington DC to the imagination of the justices hear a flag-salute case argued in who decided Barnette. It has been the nation’s highest court. Back in used to strike down laws that Pennsylvania, when they learned required nonunion government of the decision in Barnette, they workers to nonetheless pay a fee were overjoyed. to unions. It also has been used to strike down a California law that wwMost public schools continued required antiabortion pregnancy to make the Pledge of Allegiance centers to inform patients that part of the regular school day, free or low-cost abortions can be but students who chose not to provided elsewhere. participate—either because of was to withdraw certain subjects


Lecture 9  Jehovah’s Witnesses and Flag-Salute Cases

Immediately before and during World War II, the Supreme Court begins to seriously consider—and often protect—individual liberties. From this point forward in this course, many of the legal battles will be fought primarily in the appellate courts, not the trial courts, and what happens of importance in these cases will not be decided by juries, but by justices.

READINGS Peters, Judging Jehovah’s Witnesses. Peterson, “Recollections of West Virginia State Board of Education v. Barnette.”


Lecture 10

Korematsu v. United States


 the 2018 case of Trump v. Hawaii, the Supreme n Court upheld the Trump Administration’s policy of banning most residents of seven countries from entering the US. The court upheld the ban on a vote of five to four, rejecting arguments that the ban was “anti-Muslim.” Curiously, Chief Justice John Roberts, in his opinion for the court, referenced a case decided in the middle of World War II, Korematsu v. United States, writing, “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—has no place in law under the Constitution.” It seemed to be the one thing all nine justices could agree on: Korematsu was a terrible decision. So how did it happen?


Lecture 10  Korematsu v. United States

Japanese Americans after Pearl Harbor wwFred* Korematsu’s father immigrated to the US from Japan in 1904. He settled in San Francisco in 1905, the same year delegates met there to form the Asiatic Exclusion League. The press regularly warned about the growing “yellow peril.”

The proclamation authorized the seizure of enemy aliens deemed to be dangerous and subjected the homes of Japanese Americans to random searches. wwPolice entered Korematsu’s home and confiscated flashlights, cameras, and anything else they thought might be used for signaling. They stationed a guard outside their house.

wwKorematsu had to go to Chinatown because none of the barbers near his home would cut his hair. Some restaurants refused to serve him. Despite the discrimination, Korematsu was patriotic. In 1940, when Congress instituted its first peacetime draft, Korematsu registered on the first day.

wwThe biggest push for removal in the military came from General John DeWitt, head of the Western Defense Command. In the end, it would be DeWitt who would oversee the removal process. DeWitt prepared what was essentially a brief arguing for removal and sent it to Secretary of War Henry Stimson. In it, DeWitt described persons of Japanese ancestry in America as “112,000 potential enemies […] at large today […] that are ready for concerted action.” DeWitt

wwOn the morning of December 7, 1941, Korematsu heard a radio bulletin announcing the bombing of Pearl Harbor. Within hours of the bombing, President Franklin D. Roosevelt declared all Japanese immigrants over the age of 14 to be “enemy aliens.”

* Fred was not his given name. An elementary school teacher found his real name to

be unpronounceable and asked him, “How would you like to be called Fred?” 95

Lecture 10  Korematsu v. United States

wrote, “The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.”

§§ Proclamation 4 imposed a freeze order prohibiting persons of Japanese ancestry from leaving the West Coast unless in a manner specified by the military.

wwOn February 19, 1942, President Roosevelt signed an executive order authorizing the War Department to draft and enforce a removal order. The next month, General DeWitt issued a series of proclamations:

wwThe most consequential orders of DeWitt required persons of Japanese ancestry to report to so-called assembly centers, where they would be confined until permanent camps or relocation centers could be constructed at remote inland locations.

§§ Proclamation 1 created a “Military Area” that included the western halves of California, Oregon, and Washington, as well as the southern half of Arizona. All persons of Japanese ancestry, both citizens and noncitizens, were required to remove themselves from that area.

Justice Owen Roberts, in his dissent in the Korematsu case, described the term assembly center as “a euphemism for a prison.”

wwFamilies had only days to make major decisions—including what to do with their business (if they had one), which possessions to take and which to give away, and what to do with their homes.

§§ Proclamation 3 imposed an immediate curfew from 8 p.m. to 6 a.m. for persons of Japanese ancestry and allowed them to travel only to and from work.


Lecture 10  Korematsu v. United States

Also, they’d prove themselves to be loyal Americans. And it’s likely that many feared they might be the victims of mob violence if they remained where they were.

wwThe vast majority of Japanese Americans followed the government’s orders. By cooperating, they hoped, they would be treated more humanely.

Korematsu’s Arrest and Trial wwKorematsu’s first thought was to escape with his girlfriend Ida to Nevada, outside of the exclusion zone. But Ida wasn’t ready to move. She suggested that Korematsu get plastic surgery to change his Japanese features so that he could pass as something

else—Spanish Hawaiian maybe? Korematsu changed the name on his draft card to Clyde Sarah because the name sounded like it might fit a person of that mixed ancestry. But the surgery was a failure; he was instantly recognized by everyone he knew. 97

Lecture 10  Korematsu v. United States

wwMay 9, 1942, was the day on which all persons of Japanese ancestry were officially banned from Alameda County, where Korematsu lived. The rest of his family, as required, reported to their assembly center, a racetrack in San Bruno, California. They became family number 21538. The center was surrounded by barbed wire. Armed guards manned the entrance. Each entrant was searched, inoculated, fingerprinted, and interrogated. Then, they were assigned to cramped barracks or stables.

himself as Clyde Sarah. But he quickly admitted that he was of Japanese ancestry and that the rest of his family was in camp. Korematsu was arrested and jailed. wwWhile being held at the Presidio stockade in San Francisco, Korematsu received a visit from Ernest Besig, a representative of the ACLU. The ACLU had been looking for someone to challenge the exclusion order in court. Besig warned Korematsu that even if he fought the order, the odds of winning were stacked against them. Courts tend to be deferential to decisions of the military in wartime. But Korematsu agreed to fight.

wwKorematsu ignored the order. He described the decision mainly as “a personal issue—I was so young.” But he knew the order was wrong. “I felt that I was an American citizen and I had as wwShortly after meeting with Besig, much rights as anyone else. I Korematsu was taken to the don’t even have any ties to Japan.” San Bruno assembly center and assigned to a horse stall. The stall had gaping holes that the wwThree weeks after the evacuation wind and dust blew through. It order went into effect, Korematsu had no heat or water. The only was stopped while walking down furnishings were a mattress and a a street by an officer in San single light bulb. Leandro. Korematsu identified


Lecture 10  Korematsu v. United States

wwFamily members and others worried that what he was doing was going to make it worse for everybody, and he was largely shunned in camp.

to freedom of movement and assembly. And they argued that the order violated Korematsu’s right to equal protection under the law.

wwKorematsu was charged with wwThe national ACLU was on the crime of “remaining in that board with raising the issue of portion of Military Area 1 covered Korematsu’s basic rights but was by Civilian Exclusion Order not happy with the direct attack number 34.” Bail was initially on the constitutional authority set at 2,500 dollars and then of the president, through the raised substantially when Besig military, to issue the order. attempted to pay it. It was clear The Northern California ACLU that the government had no chapter decided to forge ahead on intention of letting Korematsu go its own. anywhere they didn’t want him to go. The case began receiving wwThe government defended the national attention. order as a reasonable response to a threat to national security. wwACLU lawyers filed a motion to dismiss the charges. They argued wwAs the ACLU expected, its that the order was not a valid motion to dismiss the charges exercise of constitutional power. against Korematsu was rejected. They also argued that it violated a Korematsu pled not guilty to whole laundry list of Korematsu’s the charges, and the case was constitutional rights: the right set for trial. The sole questions to be free from unconstitutional of facts for trial were whether searches and seizure, the right Korematsu was a person of to due process, the right to be Japanese ancestry and whether free from cruel and unusual he was within Military Area 1, the punishment, and the rights exclusion area. 99

Lecture 10  Korematsu v. United States

wwThe prosecution presented just wwJudge Adolphus St. Sure found one witness, an FBI special agent Korematsu guilty and sentenced who interviewed Korematsu after him to probation for five years— his arrest. The agent testified which, of course, meant almost that Korematsu admitted he was nothing. He was headed to an of Japanese ancestry and that internment camp. he remained in the Bay Area after the exclusion order took wwWhen the military completed effect. The agent also testified inland relocation centers, it began that Korematsu changed the moving families there from the name on his draft card and birth assembly centers. Korematsu and certificates, evidence that he knew his family were shipped to Topaz, he was in violation of the law. Utah. When a temporary work release program was put in place, Korematsu jumped at the chance wwKorematsu testified on his own to escape camp life. After passing behalf. He testified that he was a a background check, he was able loyal American. He told the judge, to take a job at a concrete and “As a citizen of the United States I pipe company in Salt Lake City. am ready, willing, and able to take up arms for this country.”

Appeal and Supreme Court Decision wwThe government, meanwhile, did what it could to make Korematsu’s appeal difficult. It filed a motion to dismiss his appeal on procedural grounds. A hearing on the motion was set before the Ninth Circuit Court of Appeals. Korematsu’s case

was heard with that of two other Japanese Americans also found to have violated exclusion orders. wwKorematsu’s attorney argued that “there is no decision in history” that suggests that the rights of citizens could be distinguished 100

Lecture 10  Korematsu v. United States

on the basis of their ancestry. The government argued that the exclusion order was justified because the government had no way of distinguishing the loyal Japanese Americans from the disloyal. wwThe Ninth Circuit decided to punt the hard questions to the Supreme Court. Refusing to rule on constitutional questions itself, the court “certified” the issues to the US Supreme Court. But the Supreme Court declined the

invitation and sent the case back to the Ninth Circuit for decision. wwIn June 1943, Korematsu’s case was dealt a setback. The US Supreme Court, in a decision involving another challenge to war orders, upheld the curfew order. While the case was only about the curfew, the decision confirmed that Korematsu faced an uphill battle in his challenge to the exclusion order. Six months later, the Ninth Circuit upheld the exclusion order in a decision that

Once the government reconsidered its decision to exclude all citizens of Japanese ancestry from the military, more than 33,000 men ended up serving segregated units in the military—and they served their country well. 101

Lecture 10  Korematsu v. United States

rested on the Supreme Court’s decision in the curfew case.

wwWhile the date for oral argument in his case approached, Korematsu headed east. In January of 1944, he had been granted indefinite leave from the Topaz center, and in October 1944, he moved to Detroit.

wwKorematsu’s lawyers filed a petition for certiorari with the Supreme Court, asking that they review the Ninth Circuit’s decision. To the surprise of many, wwOn October 11, the nine justices the court granted the petition. of the Supreme Court heard arguments in the case of Korematsu v. United States. And on wwKorematsu’s appellate attorney, December 18, the Supreme Court Wayne Collins, wanted to make announced its decision.† By a vote the Korematsu case about what he described as “the whole of six to three, the court upheld outrageous program”—not just Korematsu’s conviction. the exclusion order, but the system that led to what Collins called wwJustice Hugo Black wrote the “imprisonment without cause, majority opinion: without justification and without trial in defiance of the very letter We cannot reject as unfounded the and spirit of the Constitution.” judgment of the military authorities and Congress that there were disloyal members of the population.

† On the same day as the Korematsu decision, in the case of Ex Parte Endo, the

Supreme Court ruled unanimously that it was unconstitutional for the government to detain a person of Japanese ancestry after they had made a specific determination that the person was a loyal citizen. On the day before the Korematsu decision, the Roosevelt Administration announced that it was revoking the exclusion orders. Persons of Japanese ancestry could, in good order, return to their West Coast homes. Some, fearing hostility or having no home to return to, stayed in camps until they were ordered out. 102

Lecture 10  Korematsu v. United States

wwThe court said it would save for another day the question of the constitutionality of the incarceration itself.

wwKorematsu got word of the court’s decision in Detroit, where he remained throughout 1945.

wwIn 1983, Federal District Judge Marilyn Patel found that the wwDissenting, Justice Frank Murphy government, 40 years earlier, bluntly wrote that the “exclusion had relied on “unsubstantiated goes over the very brink of facts, distortion, and the constitutional power and falls representations of a military into the ugly abyss of racism.” He officer whose views were found it significant that “not one seriously infected by racism.” She person of Japanese ancestry was vacated Korematsu’s conviction. accused or convicted of espionage or sabotage after Pearl Harbor.”

Korematsu never told his children about his arrest and his big case before the Supreme Court. They learned about their father’s role in history in school.

READINGS Bannai, Lorraine K. Enduring Conviction. Daniels, The Japanese American Cases.


Lecture 11

Segregation on Trial


 June 7, 1892, Homer Plessy took a seat in the n “white” section of the East Louisiana Railway. Railroad officials ordered Plessy to the so-called colored car. Plessy, who was oneeighth African American, refused to move. A police officer ejected Plessy and took him to jail. Officials charged Plessy with violating a recently enacted state Jim Crow law, which barred persons from occupying rail cars other than those to which their race had been assigned. Plessy challenged Louisiana’s Separate Car Act, arguing that it violated the Fourteenth Amendment’s guarantee of equal protection of the laws. The case, Plessy v. Ferguson, made its way to the US Supreme Court, which upheld the law. In so doing, it announced the legal principle “separate but equal”—which would guide American race relations for more than half a century. 104

Lecture 11  Segregation on Trial

Charles Hamilton Houston’s Fight for Equality wwFor an African American of his wwIn April 1919, Houston left the time, Charles Hamilton Houston army. “My battleground,” he had a privileged life. His parents declared, is “in America, not gave him every advantage they France.” could afford. At age 12, he entered the M Street High School, the wwHouston returned to an America first black high school in the in turmoil. The summer of United States. He attended 1919 was “the greatest period Amherst College, where he was of interracial strife the nation the only black student in his class. had ever witnessed.” Mobs burned homes and shot, flogged, tortured, and lynched blacks. wwWhen the United States entered Race riots broke out from Texas World War I in 1917, Houston to Washington DC. enlisted in the first black officers’ training camp, Fort Des Moines in Iowa. Serving in the Jim wwHouston knew what he must Crow army camps of France do. And law school would strengthened his resolve to fight provide him the tools to do it. racial injustice. Houston said, He gained admission to Harvard Law School, where he earned a position on the editorial board The hate and scorn showered on Negro of the Harvard Law Review—the officers by our fellow Americans […] first African American to be so convinced me that there was no sense honored. Houston graduated in in dying for a world ruled by them.* the top five percent of his class.

* In the US Army, Houston and other black officers ate on benches in the enlisted

men’s area, not in the officers’ mess. They were forced to use special latrines and “showers boarded off to prevent contact with white enlisted men.” 105

Lecture 11  Segregation on Trial

wwWith law school behind him, wwHouston joined the NAACP’s Houston was ready to begin his National Legal Committee at assault on segregation in America. a time when the organization He saw the training of black favored what was called voluntary lawyers as the key to mounting segregation. Members in this his attack. He landed a teaching camp believed there was no hope position at Howard Law School, for the foreseeable future of which since its establishment had ending segregation, so better to trained three-fourths of the black focus on organizing social and lawyers in the United States. political power within the black community. Houston disagreed.

Houston’s efforts to elevate the status of Howard Law School encouraged promising black students to enroll. One was a gangling young man from Baltimore named Thurgood Marshall (above left). 106

Lecture 11  Segregation on Trial

wwHe encouraged the NAACP to wwHouston focused first on concentrate its legal efforts segregation in graduate and on ending discrimination in professional schools. The education. The fight must begin, complete absence of graduate he argued, under the prevailing and professional opportunities in “separate but equal” principle many states made the inequality announced in Plessy. It was dramatic and impossible to unrealistic to expect courts to dismiss. In 17 of the 19 states jettison “separate but equal” that enforced separation by law, immediately; rather, the NAACP Houston observed, should work to make segregation with equality too expensive Not a single state-supported institution to maintain. It should seek to of higher learning [… allowed a Negro demonstrate the stark inequalities to] pursue professional or graduate that exist in education. It should training at public expense. provide hard evidence of the salary differentials between wwHouston had other reasons for black and white teachers. It beginning his attack on Plessy in should make clear the limited the professional schools. First, opportunities that exist for black professional schools could be students compared to their white the source of sorely needed black counterparts. leaders. Second, judges—as products of professional schools themselves—could appreciate the wwHouston’s idea won over NAACP consequences of the inequalities leaders, and he was appointed that indisputably existed. Third, special counsel. At his new post integration of professional in the NAACP national offices schools seemed to threaten in New York, he took the first Southern whites far less than did steps down the long road to the integration of primary and overturning Plessy. secondary schools.


Lecture 11  Segregation on Trial

The Path to Overturning Plessy wwIn June 1935, the registrar at the University of Missouri received a request for a catalog from a prospective student living in Jefferson City. Registrar Silas Canada responded as he had to hundreds of similar requests. He sent a form letter and a catalog to the student, Lloyd L. Gaines. wwAlthough the registrar did not know it at the time, Gaines was an African American. He had an outstanding academic record. He was valedictorian of his high school. He attended Lincoln University, Missouri’s all-black college, on a scholarship and had glowing recommendations from professors. wwOnly when the University of Missouri received Gaines’s transcript from Lincoln did officials realize that he was black. Registrar Canada sent Gaines a telegram indicating that his application no longer was considered a routine matter:

Regarding your admission to law school […] suggest you communicate with [Lincoln University] President Florence regarding possible arrangements and further advice.

wwThe same day that Gaines received the telegram, he wrote the president of Lincoln University, asking, “Just what are the possible arrangements and further advice?” President Florence responded with the advice that Gaines take advantage of a state law that made him eligible for a scholarship to attend law school at a neighboring state school that admitted African Americans. Gaines could study law in Iowa, Nebraska, Kansas, or Illinois—but he could not study law in Missouri. wwHouston decided that Gaines was the right plaintiff at the right time to challenge Missouri’s policy of segregation. Houston and the NAACP, on behalf of Gaines, filed suit against the University of Missouri in circuit


Lecture 11  Segregation on Trial

court in Columbia. Houston contended that the rejection of Gaines “solely on the basis of color was a clear violation of the Fourteenth Amendment to the U. S. Constitution.” Judge W. M. Dinwiddie set the matter for trial. wwAbout 200 people crowded into the Boone County courthouse to view the proceedings. Houston’s first witness was Gaines himself. Houston asked Gaines, “Why not accept Missouri’s offer of a scholarship to attend an out-ofstate law school?” Gaines gave his reasons: Missouri was “a very good law school,” cheaper, and “nearer home.” Also, the school emphasized Missouri law, and that would help fulfill his “wish to practice law […] within the state of Missouri.” wwHouston called Silas Canada, the registrar, as a witness to demonstrate that discrimination at the University of Missouri was exclusively racial. Houston asked, “Did you admit Chinese students?” “Japanese students?”

“Hindu students?” Canada replied to each question in turn: “Yes, sir.” “The only students you bar would be students of African descent, is that right?” asked Houston. Canada admitted, “Other things being equal, I think so, yes, sir.” wwThe defense, when its turn came, called several well-known Missouri figures to buttress its case. N. T. Gentry, a former judge and attorney general, agreed that segregated education was “the settled policy of [the] state.” F. M. McDavid, the new president of the University of Missouri, testified that the university, in turning down the application of Gaines, was just doing its duty under state law. wwTwo weeks later, Judge Dinwiddie dismissed the petition of Gaines. The judge gave no reasons for his decision. Houston announced that the decision would be appealed to the Missouri Supreme Court.


Lecture 11  Segregation on Trial

wwBy the end of 1937, the Missouri Supreme Court had unanimously affirmed the trial court decision in the Gaines case. Missouri did not violate the “separate but equal” principle of Plessy: “Equality is not identity of privileges,” the court said.

wwHouston appealed. When the US Supreme Court accepted the case, he began preparations for the most significant challenge to segregated education since the adoption of the Fourteenth Amendment.

Gaines Reaches the Supreme Court have Missouri “furnish within its borders facilities for legal education substantially equal to those which the State afforded for persons of the white race.”

wwOn November 9, 1938, before the justices of the Supreme Court, Houston argued the Gaines case. wwThe decision came a month later. Chief Justice Charles Evans Hughes wrote the court’s opinion in Missouri ex rel. Gaines v. Canada, Registrar of the University of Missouri. Missouri, he said, had violated the right of Gaines to the equal protection of the laws. wwHughes said, “The essence of the constitutional right is that it is a personal one.” Gaines, “as an individual,” was entitled to

Chief Justice Charles Evans Hughes


Lecture 11  Segregation on Trial

wwHouston told the press that the decision would open up new opportunities for African Americans in the 16 states that barred them from professional schools.

school would comply with the US Supreme Court’s requirement of “substantial equality.” wwThe school would open in a rented building in Saint Louis with a faculty of four.

wwMore than being a decision about Missouri’s unique approach to race and higher education, the Gaines case established the principle of equality of education.

wwHouston and other NAACP attorneys assembled in early October 1939 to take depositions in preparation for a hearing to determine whether Missouri had complied with the Gaines decision. Attorneys deposed each of the four instructors of the new Lincoln Law School.

wwBut hopes that Missouri would quickly enroll Gaines in its law school faded. A Missouri lawyer named John Taylor introduced a bill in the Missouri legislature to postpone integration of wwThe deposition of Gaines was the university. His proposal next. But called for questioning, authorized all-black Lincoln Gaines did not respond. In fact, University to “establish whatever he could not be found anywhere. graduate and professional schools are necessary to make Lincoln wwLawyers for the University of University the equivalent of the Missouri warned that if Gaines University of Missouri.” The bill could not be found soon, the case was easily enacted into law. would have to be dismissed. As it turned out, Gaines had been missing for six months, and his wwThe Missouri Supreme Court disappearance remains a mystery sent the Gaines case back to to this day. circuit court to determine whether the planned new law 111

Lecture 11  Segregation on Trial

The Fight, Continued While Thurgood Marshall directed the NAACP’s arguments in Brown, Houston was the Moses of the journey that led to Brown and beyond. He marked the path down which Marshall and others walked. wwIn the years following Gaines’s disappearance, Houston continued to fight for the legal rights of African Americans. By 1947, he decided the time was right for “a direct, open, all-out fight against segregation.” There is, Houston declared, “no such thing as ‘separate but equal.’”

wwBut Houston was in declining health. And on April 22, 1950, he died of a heart attack. wwTwo months after Houston’s death, the Supreme Court announced its decisions in the Sweatt and McLaurin cases—both of them unanimous. Neither Texas nor Oklahoma met the condition of “substantial equality” established in Gaines. And three weeks after the court announced its decisions in these cases, the University of Missouri opened its doors to its first black students.

wwHouston opened two important education cases that would build on the foundation of the Gaines case. Sweatt v. Painter challenged the constitutionality of the refusal of the University of Texas to admit an African American to its law school. The second case, McLaurin v. Oklahoma State Regents, challenged segregation in the University of Oklahoma’s School of Education, which required George McLaurin, an African American graduate student, to sit, study, and eat apart from white students.

wwFour challenges to segregated education reached the Supreme Court in December 1952. The best known of the four involved the suit by Linda Brown and several other African American grade-school students from Topeka, Kansas. 112

Lecture 11  Segregation on Trial

wwIn May 1954, Chief Justice Earl Warren announced the Brown v. Board of Education decision for a unanimous court, declaring: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

Gaines was in genuine doubt. The court’s language in Gaines—the first Supreme Court victory ever achieved by African Americans in an education case—required that states prove African Americans had real and substantial equality of educational opportunities. That language, coupled with a shift in attitudes concerning racial issues brought on by World War II, made the court’s verdict in Brown all but inevitable.

wwBrown is justly considered a landmark decision. Gaines is largely forgotten. Yet of the two cases, only the outcome in

READINGS Greenberg, Crusaders in the Courts. Klaman, Brown v. Board of Education and the Civil Rights Movement. McNeil, Groundwork. Patterson, Brown v. Board of Education.


Lecture 12

The Lenny Bruce Trials


p until the 1960s, the closest the Supreme Court came to a definition of obscenity was in the 1957 case of Roth v. United States.* In Roth, the court said the question courts should ask was “whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest.” With such undefined language, there was still a lot to argue about as the 1960s arrived.

* Justice Brennan wrote in the Roth case that obscenity must be judged by “the

average person, applying contemporary community standards.” But who is average? And how does one determine what the standards of a community are? According to the court, to be obscene, the “dominant theme” of the work “taken as a whole” must “appeal to prurient interest.” But whose prurient interest? And how does one determine the “dominant theme” of a work? Finally, the court said, to be obscene, the work must be “without redeeming social importance.” But how much social value might it take to redeem a work? And can’t one person’s socially important material be another person’s hogwash? 114

Lecture 12  The Lenny Bruce Trials

Bruce’s Obscene Comedy wwLenny Bruce was the spirit of hipness and rebellion. His underdog, idealistic humor took on every American sacred cow. Fair game for his humor included capitalism, organized religion, and sexual mores. Fans took to Bruce’s dark sexiness and brutal honesty.

with violating California’s obscenity law after a latenight performance at the Jazz Workshop. The complaint mentioned a few things, including bits with sexual content. But more than anything else, it came down to a single dirty word.

wwBruce’s rise to the status of wwToday, we’d say the trial raised cultural icon began in the midboth issues of indecency and 1950s. His first gigs were in the obscenity,† but in 1961, the law strip clubs of southern California, generally lumped the two issues where he began to develop the together. Judges at the time iconoclastic edginess that would talked about “obscene words” in a be his trademark. On April 5, way they no longer do. 1959, Bruce appeared on the nationally televised Steve Allen wwFortunately for Bruce, he was Show, and two years later, he tried by a San Francisco jury. His performed before a packed house defense counsel told the jury that at Carnegie Hall. Bruce’s humor was “in the great tradition of social satire.” Experts from jazz critics to literature wwBut then the legal problems professors were called to the began. In the fall of 1961, Bruce stand to offer their opinions on was charged in San Francisco † Obscenity, as the court defined it in a 1973 case, has come to mean something altogether different from indecency. The court’s current definition of obscenity is very narrow. Today, the court would only would allow prosecutions of hard-core pornography that is sexually explicit and patently offensive and lacks significant social, artistic, or political value. 115

Lecture 12  The Lenny Bruce Trials

the social importance of Bruce’s humor. The jury heard both a tape of Bruce’s full performance and Bruce’s own testimony on his choice of words. And then they voted to acquit.

never happened. After arriving in London, Bruce was promptly deported.

wwIn June, a California court ordered Bruce confined at the State Rehabilitation Center in Chico for treatment of his drug wwBut the San Francisco trial was addiction. Legal problems seemed just the beginning of Bruce’s legal to be taking a toll in more ways troubles. The arrests kept coming. than one. wwIn 1962, Bruce was charged again with violating California’s wwIn March 1964, after being obscenity law after a performance arrested yet again after a at the Troubadour in West performance in southern Hollywood. Less than two weeks California, Bruce decided the later, he faced charges in Chicago last refuge for his controversial following a show at the Gate of humor was New York City. Horn. Then, he was arrested in Los Angeles for a performance at the Unicorn. wwThe two southern California trials ended in deadlocked juries. Bruce was not so lucky in Illinois, where he was convicted and sentenced to a year in jail. wwIn the spring of 1963, Bruce was free on bond pending appeal of his Chicago conviction. He flew to London for a planned show. It

Lenny Bruce 116

Lecture 12  The Lenny Bruce Trials

wwBut Bruce was no longer in his earlier arrests, including “To Is a prime, physically or artistically. Preposition; Come Is a Verb.” In The lean and hip Bruce had another sketch, Bruce suggested become overweight and that men are so oversexed that uninspired. The pointed satire of they are willing to have a onehis earlier routines had turned night stand with just about to obsessing over his obscenity anything that moves, including a arrests. He seemed to resort more chicken. to perverse shock to attract an audience. wwThe next day, Inspector Ruhe submitted his report on Bruce’s performance to the office of wwBruce began a run in Greenwich District Attorney Frank Hogan, Village at Café Au Go Go, which who followed up by sending a was a coffeehouse with a small squad of four officers to the Café semicircular stage. About 350 Au Go Go to record Bruce’s entire people a night entered under routine that night. the red-domed canopy to catch Bruce’s 50-minute act. wwThe DA’s office prepared a typed transcript of the show and wwOn March 31, 1964, one of the presented it, along with officer persons in the audience was the testimony, to 23 grand jurors. license inspector for the city The grand jury indicted Bruce of New York, Herbert Ruhe. for violation of a penal code that As Bruce performed, Ruhe prohibited scribbled down offensive and graphic terms. obscene, indecent, immoral, and

wwBruce’s show that night included his usual autobiographical musings about his legal problems. It also featured some of his old standards that had led to

impure drama, play, exhibition, and entertainment […] which would tend to the corruption of the morals of youth and others.


Lecture 12  The Lenny Bruce Trials

wwFor each of the three charges against him, Bruce faced a maximum punishment of three years in prison.

mostly entertainers and authors, signed a petition protesting the prosecution of Bruce: Whether we regard Bruce as a moral

wwShortly before Bruce’s scheduled 10 p.m. performance at the Café Au Go Go on April 3, plainclothes officers arrested Bruce and Howard Solomon, the owner of the coffeehouse. The officers drove the two men to the Sixth Precinct headquarters, where they were booked and incarcerated. wwThe arrest sparked a firestorm of protest from the city’s intellectual community. More than 80 prominent people,

spokesman or simply as an entertainer, we believe he should be allowed to perform free from censorship or harassment.

wwThe New York trial of Bruce, according to his defense attorney Martin Garbus, “took place on the near side of the divide that separated America’s past from its future.” The six-week trial would be the longest, most costly, and most publicized obscenity trial in American history.

At the time of Bruce’s arrest, the law relating to obscenity and indecency was in chaos. No five members of the Supreme Court could agree on what the standard for judging performances like Bruce’s should be. As a result, a lot of discretion rested with prosecutors, judges, and juries. For those doing adult comedy, the state of affairs meant taking calculated risks or playing it safe.


Lecture 12  The Lenny Bruce Trials

Bruce’s Obscenity Trial If Bruce had taken the stage a decade later at the Café Au Go Go, he never would have been arrested—there would have been no trial. The times were changing in the 1960s, and First Amendment law was changing along with it. seen during his visit to Café Au Go Go. Reading from notes taken at the nightclub, Ruhe delivered a sort of butchered performance of Bruce’s routine. As he did so, Bruce suffered silently. Before he left the stand, Ruhe said something that, according to defense attorneys, hurt Bruce badly. The inspector said he observed Bruce moving his hands up and down on the microphone in “a masturbatory gesture.”

wwBecause Bruce was charged with a misdemeanor, not a felony, the trial would not take place before a jury. Bruce’s fate would be decided by a three-judge panel. The presiding judge was John Murtaugh. A largely beat audience showed up in Manhattan for the opening of the trial.

wwProsecutor Richard Kuh said that Bruce’s show consisted of “cumulatively nauseating word pictures interspersed with all the four-letter words and more acrid wwBruce and numerous defense 10- and 12-letter hyphenated witnesses would deny that any ones, spewed directly at the such gesture ever happened. audience.” He said the monologue When Bruce heard Ruhe’s was neither artistic nor testimony about the alleged significant social commentary. gesture, he told his attorney, “That’s it! That’s the trick! That’s how they’re going to get me. I wwThe prosecution’s key witness would never do anything like was Inspector Ruhe, who that—I know better.” described what he had heard and


Lecture 12  The Lenny Bruce Trials

wwThe prosecution next called police officers who attended performances and talked to Bruce afterward. Finally, the prosecution introduced audiotapes of Bruce’s two performances on the night of April 7. After just three days of testimony, the state rested.

had “no unity of purpose, no cumulative point or statement to be made.” There was no “whole work” that could be found to have redeeming value.

wwThe defense team focused on proving that Bruce’s monologue did have redeeming social value. Its most effective witness was newspaper columnist and panelist wwThe next day, Bruce was on What’s My Line?, Dorothy hospitalized with pleurisy, and Kilgallen, who was prim and the defense was granted an proper and not associated in the adjournment. When the trial least with the edgy or the avantreconvened, the defense moved to garde. On the stand, she said, dismiss. Bruce’s lawyers pointed to a just-decided Supreme Court case involving Henry Miller’s Well, Your Honor, to me words are just Tropic of Cancer. The court ruled words, and if the intent and the effect is that “dirty language alone” could not offensive, the words in themselves not sustain a conviction. are not offensive. wwThe prosecution countered that Bruce was arrested for a performance that was obscene in substance, not just in its words. Moreover, prosecutors argued that obscenity could be found in just a single, filthy sketch; it didn’t matter that some sketches might be more political and less than obscene. Bruce’s work

wwShe called Bruce “a brilliant satirist, perhaps the most brilliant that I have ever seen” and said his social commentary “is extremely valid and important.” wwThe prosecution called a series of experts as rebuttal witnesses. Prosecutor Kuh complained it wasn’t easy to round up experts; 120

Lecture 12  The Lenny Bruce Trials

few, it seemed, wanted to be labeled “squares.”

wwMurtagh sentenced Bruce to “four months in the workhouse.” Prosecutors had asked that Bruce be sent to jail immediately because “he had a notable lack of remorse,” but he was released on bond during his appeal.

wwOne expert who did testify was social critic Marya Mannes, who called the use of obscenities “the last resort of the comedian.” She distinguished Bruce’s use of obscenities from the use of those words by great authors, such as Edward Albee in Who’s Afraid of Virginia Woolf?, and said that Bruce’s use of obscenities added none of the realism, drama, or insight into character that Albee’s use did.

Bruce said of his conviction, What does it mean to be found obscene in New York? This is the most sophisticated city in the country. If anyone is the first person to be found obscene in New York, he must feel utterly depraved.

wwThe court did not announce its verdict in the Bruce trial for another 99 days. November 4, 1964, was decision day. Judge Murtagh announced the court’s judgment: Both Bruce and club owner Howard Solomon were “guilty as charged.” The judge wrote in his opinion that Bruce’s act “appealed to prurient interest,” was “patently offensive to the average person in the community,” and lacked “redeeming social importance.”

wwBruce would never see his final vindication. Barred from working in New York, he sought gigs in California. But few wanted to take the legal risk that was part of the package. Within a year, Bruce was declared legally bankrupt. He filed civil suits against his tormentors: prosecutors and judges. And he got heavier and sicker. wwOn August 3, 1966, Bruce died of a morphine overdose in his home


Lecture 12  The Lenny Bruce Trials

in Hollywood Hills, California. Eighteen months later, New York’s highest court reversed his conviction.

pardoned Bruce. It was the first posthumous pardon granted in the state’s history. Governor Pataki described the pardon as “a declaration of New York’s commitment to upholding the First Amendment.”

wwOn December 23, 2003, New York Governor George Pataki

A New Type of Comedian wwBruce was the first of a new type of comedian. George Carlin began to make it big a few years later. Carlin gave a lot of the credit to Bruce:

wouldn’t hold up in court. But what about over the airwaves? Carlin liked to joke in his shows about the “Seven Dirty Words” you could never say on television.

Lenny Bruce opened the doors for all

wwIt turns out he was right—and not just about television.

the guys like me; he […] helped push the culture forward into the light of open and honest expression.

wwAfter the Cohen case in 1971,‡ a prosecution against a comedian like George Carlin for saying dirty words in a live performance

wwWhen a public radio station in New York City played Carlin’s “Seven Dirty Words” monologue, the FCC fined the station. Moreover, the broadcast of the monologue was a black mark

‡ In 1971, Paul Cohen was convicted and sentenced to 30 days in jail for wearing in

a courthouse corridor a jacket that, on its back, said “F*** THE DRAFT.” On a fiveto-four vote, the Supreme Court reversed Cohen’s conviction. Cohen had a right, under the First Amendment, to choose the word he wanted. Justice John Harlan said that the First Amendment protects not just the intellectual content of speech, but the emotive content as well. 122

Lecture 12  The Lenny Bruce Trials

based its holding on the fact that the airwaves belong to the public, the ability of broadcasts to zap listeners without warning in the privacy of their own living rooms, and the need to protect children from harmful speech. The dissenters, meanwhile, complained that the court majority demonstrated “acute ethnocentric myopia.”

in the station’s file that might be considered when its license came up for renewal. The station appealed the FCC’s action. It had a right to broadcast the monologue under the First Amendment. But the court, on a five-to-four vote, disagreed. wwThe court upheld the FCC’s authority to channel broadcasts containing indecent words to late-night hours—hours when children are unlikely to comprise much of the audience. The court

READINGS Bruce, How to Talk Dirty and Influence People. Collins and Skover, The Trials of Lenny Bruce. Garbus, Tough Talk.


Lecture 13

The Evolving Right to Marry


 1950, Richard Loving was a teenager living in n rural Caroline County, Virginia, when he met 11-year-old Mildred. As the 1950s went on, Richard and Mildred developed a friendship, and by early 1958, Mildred was pregnant. It was Mildred’s second pregnancy; she had given birth to a boy named Sidney in 1957. Richard and Mildred both wanted to get married. But there was a complication. On Mildred’s birth certificate, both her parents were listed as “colored.” In fact, she had the very mixed ancestry that was so common in Caroline County, where there was no strict separation of the races, unlike certain other parts of Virginia. But as far as the state of Virginia was concerned, she was “colored.” The parents on Richard’s 1933 birth certificate were both listed as “white.” And that, as far as Virginia was concerned, presented a problem. 124

Lecture 13  The Evolving Right to Marry

Virginia Was Not for Lovers wwVirginia prohibited interracial sexual relations as early as its colonial days. In the years since it was a colony, Virginia never changed its mind about the lawfulness of interracial marriage, though it did change its definition of who was white and who was not.*

“the corruption of blood,” which, he concluded, “would weaken or destroy” good citizenship. Virginia was far from alone in banning interracial marriage in 1955. Twenty-six states had similar laws, including nine nonSouthern states—far more states than had schools segregated by law in the years leading up to Brown v. Board of Education.

wwThe Virginia Supreme Court, about the time Richard and Mildred began dating, made clear that it saw no constitutional wwRichard Loving believed, wrongly, problem with Virginia’s ban on that he and Mildred would be less interracial marriage. Writing likely to be harassed if they got for the court, Justice Archibald married than if they cohabited. Buchanan said that nothing in the He knew that getting married in Constitution prevents states from Virginia was not possible, but the acting to prevent “a mongrel breed nation’s capital was just 80 miles of citizens.” The state had a strong away. And Washington DC had interest, he said, in preserving no laws prohibiting interracial “racial pride” and in preventing marriage.

* For the entire 19th century, a Virginian was classified as white if he or she was less

than one-quarter of African descent. But in 1910, the legislature tightened eligibility for the classification of white. As of 1910, one-sixteenth African American ancestry was enough to make a person “colored” in the eyes of Virginia. And in its Racial Integrity Act of 1924, Virginia went even further. It adopted what was called the one-drop rule: If a Virginian had any traceable African American ancestry at all, that person could not be white for purposes of the law. 125

Lecture 13  The Evolving Right to Marry

wwSo Richard and Mildred drove north and got a marriage license. Nine days later, they drove north again, this time to get married. With them were Mildred’s father and brother, along to serve as witnesses. In northeast Washington on June 2, 1958, they exchanged marriage vows. Then, they drove back to Virginia.

wwBut then one night while Richard and Mildred were sleeping, three men entered their bedroom. The men pointed flashlights at the couple. One of the men, the sheriff, demanded to know who they were. Mildred said, “I’m his wife.” Richard said, “We’re married,” and pointed at his marriage license.

wwFor a few months, all went well. They lived together in the home of Mildred’s parents. On the wall of their bedroom, Richard hung their marriage license.

wwThe sheriff said, “That’s no good here.” The other two men, the deputy sheriff and the county jailer, seemed to agree.


Lecture 13  The Evolving Right to Marry

wwRichard and Mildred were piled into a patrol car and taken to the county jail in Bowling Green. Richard was released on bail one day after his arrest. But authorities made it clear that he would not be spending any time

with Mildred. If he found bail for Mildred, they said, they’d put him back in. wwThe experience for Mildred was a nightmare. She was five months pregnant and alone.

The Loving Trial wwRichard and Mildred were indicted by a grand jury in October, five days after the birth of their son. The stated crime was “going out of the state, marrying, and returning” while being of different races under Virginia law.

proved they were lawfully married in Washington. At the conclusion of the evidence, the Lovings changed their plea to guilty, according to the sketchy trial report.

wwThe trial took place in January 1959 before Judge Leon Bazile. It was a judge trial; both sides agreed to proceed without a jury. Mildred and Richard were represented by a respected attorney and pled not guilty.

wwJudge Bazile sentenced Richard and Mildred each to one year in jail. But then he immediately suspended sentence for 25 years on the condition that they leave the state of Virginia and “not return together or at the same time.”

wwIt was a simple trial. Officers who made the middle-of-the-night visit to the Lovings’ bedroom testified that the Lovings shared a marital bed. The Lovings

wwBanished to DC, the Lovings took up residence in the home of one of Mildred’s cousins. But the couple felt the pull of home and family. 127

Lecture 13  The Evolving Right to Marry

wwFor the next few years, Richard and Mildred made several trips back to Virginia. Usually, they stayed in an adjacent county and traveled in separate cars.

someone in the office of a lawyer named Bernard Cohen who practiced in Arlington, Virginia, and might be willing to work on her case.

Attitudes toward interracial marriage were changing during the early 1960s. Religious organizations began to condemn miscegenation laws, and there was talk about a new civil rights bill the president was sending to Congress.

wwOn June 20, 1963, Mildred penned a letter to Cohen. As soon as Cohen read the letter, he knew he had to take the case. The Virginia law was an abomination, and the couple’s plight pulled at his heartstrings.

wwCohen also kept a law office in DC; the Lovings could meet him wwMildred longed to return to her there without violating the terms simple rural life with her family— of their parole. and her husband’s family—in Virginia. Her cousin suggested that she write a letter to the wwFor the Lovings to get relief, two US attorney general, Robert F. things would have to happen: Kennedy, to see if he could help. Cohen would have to figure out a Mildred followed her cousin’s way to have the case reconsidered suggestion. by Virginia courts so that there would be something to appeal, and he would have to convince an wwA few weeks later, Kennedy appellate court that the Virginia replied, saying he could not help law was unconstitutional—and if directly but suggested that she he was lucky, that pronouncement contact the ACLU. So Mildred would come from the Supreme contacted the ACLU DC office. Court of the United States. She apparently was told by


Lecture 13  The Evolving Right to Marry

wwTo get over the first hurdle, wwWith the date for arguments in Cohen tried filing a motion federal court fast approaching, in Judge Bazile’s court asking Judge Bazile finally acted on that he set aside the Lovings’ Cohen’s motion. In his 12-page convictions and sentence. He handwritten decision, he declared argued that the sentence of that the power to regulate banishment was cruel and marriages rests entirely with unusual punishment and violated the states. The sentences were due process of law. And he argued entirely proper, he said, because that the Virginia miscegenation the Lovings were “guilty of a law violated the equal protection most serious crime.” Then, he clause of the Fourteenth came to his conclusion—one that Amendment. would be quoted, praised, and ridiculed for the rest of the case’s history: wwCohen’s motion sat on Judge Bazile’s desk for months. Cohen wasn’t sure how to force him Almighty God created the races white, to act on his motion. At the black, yellow, malay, and red, and he suggestion of a colleague named placed them on separate continents. And but for the interference with his Philip Hirschkop, Cohen filed arrangement, there would be no cause a motion to have a panel of for such marriages. The fact that he three federal judges look at separated the races shows that he did the constitutionality of the not intend for the races to mix. Virginia law. wwCohen filed his class action suit in federal court in Virginia. He asked the court to declare the Virginia miscegenation law unconstitutional and enjoin the state from enforcing Richard and Mildred’s sentences.

wwIn federal court, the judges ruled that the Lovings must first appeal Judge Bazile’s decision to the Virginia Supreme Court. They did, however, rule that during the appeal process, the couple could live together in Virginia. 129

Lecture 13  The Evolving Right to Marry

wwAnd that, of course, was a victory in itself. For the first time in six years, they could live the lives they wanted to live. wwThe Virginia Supreme Court surprised no one with its decision. The court said that the precedents supporting miscegenation laws were still good law and must be followed. Brown v. Board of Education and other cases striking down segregation laws were not applicable. Marriage, the court said, is a concern of the states, not the federal government.

of Virginia, but also those of 15 other Southern and border states. wwHirschkop and Cohen divided their 30 minutes of argument time. Hirschkop focused on the equal protection argument; Cohen focused on the argument that marriage was a fundamental personal decision protected by the due process clause and the court’s privacy decisions. Cohen had the last words: No matter which theory of the Due Process Clause […] we attach to, no one can articulate it better than Richard Loving when he said to me, “Mr.

wwThe Lovings said they would appeal. Richard told a reporter, “We are not doing it because someone had to do it and we wanted to be the ones. We are doing it for us—because we want to live here.”

Cohen, tell the Court I love my wife and it is just unfair that I can’t live with her in Virginia.”

wwVirginia’s assistant attorney general had the unenviable task of defending the miscegenation law. He argued that the legislative history of the Fourteenth wwIn December 1966, the United Amendment showed that States Supreme Court announced the framers had no intention that it would hear the case of to ban laws against mixed Loving v. Virginia. Oral argument marriages. Second, he argued was set for April. At stake would that Virginia’s law promoted be not only the miscegenation law 130

Lecture 13  The Evolving Right to Marry

“violates the central meaning of the Equal Protection Clause.” He added that the law also violated the Constitution’s due process clause.

“stable homes and families,” saying that “intermarried families are subjected to much greater pressures and problems than are those of the intramarried.”

wwChief Justice Earl Warren wrote wwAfter the decision, the Lovings the opinion. The decision was drove to Alexandria to meet their unanimous. Warren called the attorneys and talk to reporters. law a clear case of invidious racial Richard said, “We’re really discrimination that served no overjoyed. My wife and I plan to go legitimate purpose. There could ahead and build a new house now.” be no doubt, he said, that the law Mildred said, “I feel free now.”

Same-Sex Marriage wwLoving v. Virginia settled the question of whether states could ban interracial marriages. But it raised another question: If states cannot ban interracial marriages, what other types of marriages might they not ban, such as marriages between two people of the same sex?

wwThe case arose in Minneapolis. A law student named Jack Baker and a librarian named Michael McConnell sought and were denied a marriage license in 1970. Their lawyer took the issue to the Minnesota Supreme Court. He compared the ban on same-sex marriage to the ban on interracial marriage in Loving. Only here, he said, the law was based on wwThat question reached the “heterosexual supremacy,” not Supreme Court less than four “white supremacy.” years after the court handed down its decision in the Loving case.


Lecture 13  The Evolving Right to Marry

wwThe court didn’t buy it. The Fourteenth Amendment, the court said, was not intended to transform the traditional notion of the family.

wwWhat about the due process argument—that marriage is a fundamental private decision that the state cannot second-guess? The problem, at least at the time, was that marriage was simply too closely tied in the minds of wwBaker and McConnell appealed the public, including judges, to to the US Supreme Court. They the act of procreation and the got nowhere. The court dismissed traditional family. the appeal, saying it failed even to present “a substantial federal question.”†

† Baker and McConnell did manage to get married after all. By making a gender-

neutral name change, they got their marriage license from an unsuspecting clerk in another county. Jack and Michael were married by a Methodist minister and became America’s first lawfully married gay couple. 132

Lecture 13  The Evolving Right to Marry

wwIt would be another four decades clause and/or the due process before the US Supreme Court clause. The landmark case is considered the constitutionality Obergefell v. Hodges. of gay marriage bans. In the meantime, social attitudes toward wwFive justices of the court, the homosexuality had begun to four liberals and Justice Kennedy, change. In 2003, Massachusetts agreed that the bans did indeed became the first state in the violate both provisions of the union to recognize gay marriages. Fourteenth Amendment. Writing And by 2013, 12 states had for the court, Justice Kennedy recognized same-sex marriage. said that with “new insights” into liberty’s meaning, “The Court now holds that same sex couples wwTwo years later, with courts may exercise the fundamental around the country split, the right to marry.” Supreme Court finally agreed to answer the question of whether state bans on gay marriage READINGS Maillard, ed., Loving v. Virginia in a violated the equal protection Post-Racial World.

Wallenstein, Race, Sex, and the Freedom to Marry.


Lecture 14

Wisconsin v. Yoder


 1965, local authorities in Buchanan County, Iowa, n decided to crack down on Amish parents who sent their kids to schools operated by their own faith. The Amish teachers in the one-room schoolhouses were not state-certified, and the Iowa school code required parents to send their children to state-licensed schools. Authorities first threatened parents with fines. Then, they tried to round up the Amish kids, load them onto a school bus, and take them to the public schools, but when the bus made its rounds to Amish farms, the kids either hid or headed for one of their schoolhouses. Eventually, a settlement was reached: The Amish would lease their two schoolhouses to the state for one dollar each. In return, the state would provide certified teachers for the schools. But the curriculum would not be the same curriculum taught in the public schools. The state promised to make “adjustments to avoid conflict with Amish religious beliefs.”


Lecture 14  Wisconsin v. Yoder

Compulsory Education wwDevelopments in Iowa were closely watched in the Amish settlements of New Glarus, in nearby south-central Wisconsin.* In fact, many of the Amish residents in Wisconsin had fled Buchanan County because of the crackdown on their schools.

wwAt first, the school board stuck to its guns. It told Yoder that his daughters would have to wear the standard uniforms and shower after class. But after criticism, the school board and Yoder reached a compromise: His girls would be allowed to wear modest, homemade uniforms and would shower in a separate dressing room.

wwOne of New Glarus’s Amish community members, Jonas Yoder, had two daughters enrolled in public schools during the mid- wwThe controversy in New Glarus 1960s. But they did not attend caught the attention of state gym classes. Yoder objected to legislators in Madison. One the short and tight uniforms proposed bill allowed exemptions that were required. He wrote a from physical education classes letter to the local school board. when parents objected on religious “Christian propriety calls for one grounds. Another, more sweeping to be modestly dressed while in bill would have allowed Amish public,” he wrote. students to leave school altogether after completing eighth grade.

* Faced with persecution, many Amish left Europe for the United States in the 18th

and 19th centuries. Over time, a split developed in the US Amish community between those who became a bit more progressive—a bit less concerned about keeping a distance from worldly temptations—and those who clung to more conservative beliefs. Many of the more progressive Amish eventually became Mennonites. The more conservative Amish came to be called the Old Order Amish. The 100-member or so community in New Glarus was an Old Order Amish community. 135

Lecture 14  Wisconsin v. Yoder

wwBut some legislators worried that wwSo the local school superintendent the amendment to the compulsory visited a number of Amish education law would only hurt families. He begged them to keep Amish kids who might wish to their students in school for at attend college or pursue careers least the first few weeks of the outside the Amish community. In school year—until the date when the end, the legislature took no the student population count action on the bills. would be made. But the Amish refused. One Amish member said, “It would not have been right to wwThe failure of the exemption bills sit in their schools just so they convinced the New Glarus Amish could collect money.” of the need to establish their own schools. This was part of a larger trend. Between 1965 and 1970, the wwThe Amish were not opposed to number of Amish schools around their kids learning to write or the country more than doubled— do arithmetic; those skills were from 150 to 303. necessary to be a productive member of an Amish community. But there was much in the wwIn the fall of 1968, the New curriculum of the public schools Glarus Amish opened their own they didn’t like—especially in the school. The new school had only high schools. They didn’t want one room, with no electricity or their children to be exposed to running water. About three dozen television or taught the theory of Amish kids planned to leave the evolution. They worried about the public schools to attend the new temptations of school dances, and school. This plan did not sit well high school social life in general, with public school officials. State and about their kids drifting away funding for schools was based on from the faith. They liked to point enrollment numbers, and if the to the admonition of Romans, Amish left the public schools, the chapter 12: “Be not conformed to New Glarus district would lose this world.” 20,000 dollars in state funding. 136

Lecture 14  Wisconsin v. Yoder

wwSchool Superintendent Kenneth Glewen was not happy with the Amish not playing ball in his financing scheme. He contacted the district attorney of Green County to see if truancy charges might be brought against Amish children who were under the age of 16 and not attending either the public or the Amish school. By comparing the Amish and public school enrollment records, Glewen identified seven youngsters who seemed to be in violation of Wisconsin’s compulsory education law.

the free exercise clause of the Constitution. They believed firmly that the First Amendment protected their decision to raise their children consistent with their religious beliefs. wwIn late October 1968, Glewen filed criminal complaints against three Amish fathers. The complaint accused Yoder, along with Wallace Miller and Adin Yutzy, of violating the Wisconsin compulsory education law. Yoder told reporters that the law made no sense when applied to the Amish: “The city people need something for their children to do. We don’t.”

wwThe superintendent sent warning letters to the parents of these children, including a letter addressed to Yoder. A few weeks later, Yoder received a second, more threatening letter. If parents wwThe charged offense was a refused to comply immediately, misdemeanor. The maximum the letter told him, they would be penalty was a 50-dollar fine and prosecuted. up to three months in jail. wwThe superintendent also paid a personal visit to several Amish parents—who not only expressed their concerns about worldliness, but also pointed to

wwAt their arraignment, the Amish defendants refused to enter a plea. Miller told the judge, “I don’t think we are guilty,” but, he added, “Our religion doesn’t 137

Lecture 14  Wisconsin v. Yoder

permit us to hire a lawyer.” The Amish generally resisted “going to law,” as they called it. They pointed to the Sermon on the Mount. Jesus said, “If any man will sue thee at the law, and take away thy coat, let him have thy cloak also.” But some Amish drew a distinction between suing and defending oneself in a criminal action. wwA newly formed organization called the National Committee for Amish Religious Freedom approached the New Glarus defendants. The organization was looking for an opportunity to challenge compulsory education laws. The legal assistance would be free of charge, and the committee promised to simply

tell the judge what the Amish believed. wwOne of the defendants pointed out that when the apostle Paul was unjustly charged with a crime, he not only defended himself but appealed his conviction to Rome. The defendants agreed to accept the committee’s representation. wwThe committee chose William Ball to represent Yoder, Miller, and Yutzy. He took the case not just to win it for three defendants in Wisconsin; he hoped to establish a precedent that could be used to expand religious freedom generally. Ball wanted a win in the Supreme Court of the United States.

Religious Freedom wwThe trial opened on April 2, 1969, in Monroe, Wisconsin. The courtroom was filled with Amish men, dressed in black and bearded. It was a nonjury trial.

wwDefense attorney Ball moved to dismiss the complaints. He argued that the Wisconsin law, as applied to the three men, violated their free exercise rights


Lecture 14  Wisconsin v. Yoder

under the Constitution. The judge denied the motion.

last people he’d ever expect to see in a lineup. And the director of the county’s social services agency affirmed that the Amish were never a drain on the county’s resources.

wwThe prosecution’s first witness was Superintendent Glewen, who described how he had identified truant students, talked with the Amish families, and sent them wwAfter the trial, the judge asked for warnings by certified mail. The briefs on the religious freedom prosecution also called a teacher issue. The state argued that at the Amish school, who testified the Amish were free to believe that she had not seen any of the what they want, but they had to truant students in her class. And conform their conduct to state that was it; the state rested. law for the good of society. wwThe defense began its case by calling Superintendent Glewen back to the stand. Glewen acknowledged that the public school taught the theory of evolution and admitted that the school neither taught the Ten Commandments nor provided any sort of moral training. The curriculum was not “Godcentered”—and the Amish were. wwThe defense concluded its case with testimony about what solid and untroublesome people the Amish were. A sheriff testified that the Amish were about the

wwThe defense argued that the law threatened the viability of the Amish faith. As a result, Ball contended, the state had to show a compelling interest in requiring the Amish to attend school past the eighth grade. The evidence, he said, showed that no such strong interest existed. wwFour months later, Judge Roger Elmer handed down his decision. He said that the Amish beliefs were sincere and that the Amish possessed “exceptional morality.” But he worried about the effects that a blanket exemption for 139

Lecture 14  Wisconsin v. Yoder

the Amish would have on the community’s children—who might later abandon the faith or who might want to pursue higher education or technical careers. wwIt seemed a close case to the judge, so he relied on a burden of proof. He said that, as a trial judge, he should only overturn a state statute if the statute was unconstitutional beyond a reasonable doubt—and he had doubts. The compulsory education law was a reasonable exercise of governmental power.

and join the order; it’s hard for them to get into the mainstream without an education.” wwThe justices of the Wisconsin Supreme Court voted to strike down the state law. The court said that enforcement of the compulsory education law could lead to “the extermination of their religious community.” There was no compelling state need to enforce the law against Amish parents. The law, the court said, violated the First Amendment’s free exercise clause.

wwThe ruling was as William Ball had expected. He vowed to appeal.

wwNow it was the state’s turn to appeal. The state worried that the decision would lead to chaos and feared how other religious groups and parents with moral objections wwThe case made its way to the to the public school curriculum Wisconsin Supreme Court, where might use the Yoder decision. Ball told the justices, “Society has no right to conscript the services of a youth into the ranks of the wwRecognizing that there were educated.” The attorney for the Amish settlements in 19 states state argued that an exemption and that the issue was likely to would reduce choices for Amish crop up outside of Wisconsin, the youth. “These Amish kids have US Supreme Court decided to no other options than to stay hear the case.


Lecture 14  Wisconsin v. Yoder

wwYoder’s attorneys relied heavily wwBall emphasized the threat that in their brief on a recent Warren compulsory education laws court precedent. The 1963 case posed to the Amish faith. And † of Sherbert v. Verner said that he pointed to a nearly complete lack of evidence that Amish were state laws burdening free exercise harming the state’s interests in rights could only stand if the state any way. could show a compelling state ‡ interest in their enforcement. wwChief Justice Warren Burger wrote the court’s opinion: “The wwOral arguments in Wisconsin v. evidence showed that the Amish Yoder took place on December 8, have an excellent record as 1971. Assistant Attorney General law-abiding and generally selfJohn Calhoun told the justices sufficient members of society.” that the compulsory education The state had failed, he said, to law was “a reasonable exercise show any harm to the “public of the police power of the state safety, peace, order, or welfare” to educate its youth.” He allowed that might come from exempting that the Amish lived honorable the Amish from the compulsory lives but argued, “What is needed education law. The free exercise is more education to cope with rights of the parents trump the the problems of society, not less.” state’s interests.

† The court ruled in Sherbert that South Carolina could not deny unemployment

benefits to a Seventh Day Adventist because she refused to work on Saturdays, her Sabbath. ‡ Sherbert was a sharp departure from an earlier Supreme Court interpretation of

the free exercise clause. In an important 1879 case, a Mormon polygamist had challenged his conviction under a federal antipolygamy law. But Chief Justice Morrison Waite had ruled that the clause only protected religious beliefs, not religious conduct. 141

Lecture 14  Wisconsin v. Yoder

wwThe outcome in Yoder should have wwBall called the decision “a great come as no surprise. The Amish victory for religious liberty.” And were sympathetic defendants, indeed, in the years that followed, the exemption they asked for was the Yoder precedent proved relatively inoffensive, and the helpful to conservative Christians state had not presented as strong seeking legal protection for home a case as it could have. education.

Even for fans of liberty, Yoder is a difficult case. It pitted against each other two liberty interests: the liberty of Amish parents to shape their children’s values and protect their religious community and the liberty of Amish children to make fundamental choices about the direction of their lives.

READINGS Dewalt, Amish Education in the United States and Canada. Peters, The Yoder Case.


Lecture 15

Furman v. Georgia


 e Founding Fathers, for the most part, had no h problem with the death penalty in appropriate cases. But in the decades after the Bill of Rights was ratified, support for capital punishment ebbed and flowed. Then, in the 20th century, the death penalty became a major focus in several famous trials, including the Scottsboro Boys trial and the Julius and Ethel Rosenberg spy trial. By 1965, opposition to the death penalty reached an alltime high—50 percent. Only in the South, where the death penalty was mostly used against African Americans, was abolition largely a nonissue. In Mississippi, for example, 87 percent of the inmates executed in the century following the Civil War were African Americans, and every one of the 41 executions for nonlethal crimes involved an African American defendant and a white victim. It was statistics like these that drove at least some of the arguments presented to the Supreme Court in the case of Furman v. Georgia. 143

Lecture 15  Furman v. Georgia

Crime and Punishment wwOn August 10, 1967, William Furman, a 24-year-old African American, spent the night drinking at Ruby’s Two Spot in Savannah, Georgia. He had been convicted four times of burglary and was out on parole.

Furman told investigators that the killing was an accident. He said, “I thought he was going to shoot me.” He said he backed away, pulled his gun, and tripped on a wire. When he lost balance, the gun went off.

wwFurman decided to rob a house. wwAfter his arrest, doctors appointed “To pick up a radio or two,” he by the state to examine Furman said later. He walked from the bar found him to have a moderate to an all-white neighborhood and mental deficiency—but not he broke into a house through a enough, they said, to prevent him porch door. from going to trial. He knew right from wrong and could assist his attorney. wwWilliam Micke was asleep in his bedroom with his wife. He heard a noise and went to investigate. wwAll 23 of the 23 grand jurors who In the kitchen, he spotted a man indicted Furman for murder kneeling in the dark. He rushed at were white. The trial took less him. And then there was a shot. than a day. Jurors heard from the When police arrived, Micke was detective who found the body at dead on the kitchen floor, a bullet the Micke home and the detective in his chest. who found Furman hiding under his uncle’s porch. They also heard from Micke’s wife, who testified wwPolice found a set of tracks about how her husband’s death that led directly to the home of had affected her life, and that of Furman’s uncle. Furman was her children. found hiding under his uncle’s porch with a pistol in his pocket.


Lecture 15  Furman v. Georgia

wwFurman never took the stand. His defense attorney worried that he would become flustered and confused. He also knew that taking the stand would mean that jurors would find out about Furman’s prior criminal history.

wwFurman was tried under the felony murder rule, under which prosecutors need not prove the defendant intended to kill anyone. It’s enough that the death occurred during the course of a felony he intended to commit.

wwThe judge did allow, however, Furman to make an “unsworn statement” to the jury. Furman said,

wwThe jury found Furman guilty of felony murder without a recommendation of mercy. The judge sentenced Furman to die in Georgia’s electric chair on I didn’t intend to kill nobody. When the November 8, 1968. gun went off I was down on the floor and I got up and ran. That’s all there is to it.

Cruel and Unusual Punishment wwIn his excellent book on the wwIn an earlier era, Furman would Furman case, Capital Punishment indeed have been done for. But on Trial, David Oshinsky quotes the times were changing. The Furman’s attorney, Bobby 1964 Civil Rights Act had banned Mayfield, who said the case racial discrimination in public was made to order for Georgia’s accommodations. The following death penalty: “A black man year, Congress had passed the killed a white man. That did it. A Voting Rights Act. And in this white judge, a white jury—they more favorable context, the wouldn’t need to know anything NAACP and its Legal Defense else. The black man was done for.” Fund had begun to focus its 145

Lecture 15  Furman v. Georgia

The discriminatory application of the death penalty was obvious to anyone who examined the issue. African Americans constituted only 11 percent of the population in 1960—but 62 percent of those who were executed. In Furman’s state of Georgia, a defendant, white or black, who murdered a white person was more than four times more likely to receive the death penalty than a defendant who murdered an African American.

attention on the death penalty— and for good reason.

urging his fellow justices to strike down the death penalty on the grounds that it was inconsistent with the “evolving standards of decency” cited by the court as its test for “cruel and unusual punishments.”*

wwAlso, there was now reason to hope the Supreme Court might be ready to take another look at the death penalty. The Warren court had been steadily expanding the rights of criminal defendants. And wwThe NAACP’s attack on the for the first time, a justice of the death penalty was guided by Supreme Court was advocating Jack Greenberg and Anthony striking down the death penalty. Amsterdam. Greenberg was a veteran of the civil rights battles, having worked on the Brown wwThat justice was Arthur Goldberg, v. Board of Education litigation. who had circulated a memo * The lies of Titus Oates, known as Titus the Liar, directly led to the deaths of at least

15 innocent Englishmen in the years between 1678 and 1681. For this, Oates was tried and convicted of perjury in 1685. The judge came up with a novel sentence: Oates was to be imprisoned and then to be “whipped through the streets of London five days a year for the remainder of his life.” Oates was released from prison after only three years. But by 1689, the English Parliament had seen enough of public spectacles like the pillories he’d endured and declared that no longer could “cruel and unusual punishments” be inflicted. 146

Lecture 15  Furman v. Georgia

Amsterdam was a law professor who had clerked for Justice Frankfurter and worked as an assistant US attorney on civil rights cases in the South.

continued to mount, it would increase pressure on justices who would ultimately decide the issue. Would they really want to unleash a bloodbath of hundreds of executions?

wwAmsterdam and Greenberg had a novel idea. They would fight wwTo help lawyers around the every death sentence, everywhere country stave off executions, in the nation, no matter who Amsterdam created what he the defendant or how heinous called the Last Aid Kit, which his crime—make every legal showed attorneys how to prepare maneuver imaginable to put off the minimal necessary court executions for as long as possible. filings to get a stay of execution. They called it the moratorium strategy. Greenberg explained, wwFurman’s attorney, Mayfield, “We knew that if we wanted to had many grounds for appeal. He persuade the Supreme Court to could argue that the 150 dollars make law, we needed to control he was paid by the state to defend every case possible that involved Furman prevented an adequate a capital punishment issue.” defense, that Georgia’s method of selecting grand jurors was racially discriminatory, or that Furman wwThe moratorium strategy served had not been fully informed of two other goals as it effectively his right to remain silent or to brought executions to a halt in be assigned an attorney prior to the United States. First, as the questioning. Finally, he could years went by without executions, make the big argument—the one it would call into question how the NAACP Legal Defense Fund essential the death penalty really cared most about—that the death was as a deterrent. Second, penalty was cruel and unusual as the number of inmates on punishment. death rows across the country 147

Lecture 15  Furman v. Georgia

The Death Penalty wwIn June 1971, Furman’s appeal penalty to violate its own state was one of about 100 death constitution. penalty cases pending review by the US Supreme Court. Forty-one wwAmsterdam’s Supreme Court states made the death penalty brief is eloquent, even poetic an option for at least some in places, and it is powerful. crimes. Nearly 600 prisoners No argument is made more sat on death row. And no one— strenuously than the argument not a single person—had been that the death penalty has come executed anywhere in America to violate “evolving standards in four years. The moratorium of decency,” the test the court strategy was working, but it was proposed for determining being tested. whether a punishment was “cruel” within the meaning of the Eighth Amendment.† wwThe court agreed to hear four of the cases, including Furman’s. Two of the other cases involved wwThe brief argues that the death rape. They raised the question of penalty is “so repellant that it whether the death penalty could forces society to look away and be used when no life was taken. not examine it too closely.” The The other murder case, Aikens v. brief asks, “Why is the State so California, was rendered moot ashamed of the process that it when the California Supreme must kill in the dead of night, Court declared the death in an isolated place, and on an unnamed day?” If general † The “cruel and unusual punishment” language of England found its way into the

Virginia Declaration of Rights of 1776. And it was Virginians like George Mason and Patrick Henry who argued in 1788 that the federal Constitution should be amended to include a ban on cruel and unusual punishments. The next year, Virginian James Madison included the language in the Bill of Rights. It was ratified and became part of the Eighth Amendment to the US Constitution. 148

Lecture 15  Furman v. Georgia

deterrence was the reason for the death penalty, then the state would not be killing prisoners “clandestinely, out of public view.”

wwAmsterdam told the justices that the death penalty was rarely and randomly imposed. He said that if the court were to strike down the death penalty, it would “not be taking away anything that is very important to the States.” It would just mean that “instead of killing 20 or 15 people randomly selected a year,” they are going to keep them in prison.

wwLike most great Supreme Court arguments, the brief is aimed primarily at the justices who will decide the case: the swing justices. Amsterdam knew that he likely started out with four of the nine justices against him. On wwHe argued that if the death the other hand, the votes of the penalty were applied much more three liberals—Justices Thurgood frequently, the public would rise Marshall, William Brennan, and up against it and demand that William O. Douglas—seemed it be repealed. But there is little pretty solid. The case would likely pressure now to repeal because be decided by the two men in the there are “very, very few people” middle, Justices Potter Stewart executed, and those that are and Byron White. executed are “predominantly poor, black, personally ugly and socially unacceptable.” wwTo win, Amsterdam didn’t have to prove that no death penalty statute could ever be drafted wwAssistant Attorney General and applied in a way that didn’t Dorothy Beasley argued for the violate the Constitution. He state of Georgia. She said that needed only prove that the death capital punishment should be penalty statutes on the books a matter for state legislatures, in the cases before the court not federal courts. Besides, she violated the Constitution. said, with 41 states having death penalty laws on the books, how 149

Lecture 15  Furman v. Georgia

could a court say that the death penalty offended “evolving standards of decency?”

pull off the road to let it all sink in. At the NAACP’s Legal Defense headquarters in New York City, a raucous celebration broke out. Furman learned of the decision on June 29, 1972. He would be released from prison in 1984.‡

wwWhen the court met in conference several days later, the votes of the conservatives and the liberals lined up as expected. It came down to the votes of Justices Stewart and White— both of whom were bothered by the randomness of the death penalty. The vote to strike down the death penalty, at least as applied under the laws that then existed, was five to four.

wwMost commentators thought the Furman decision meant the end of capital punishment in America. Some of the justices thought the same thing. Chief Justice Burger urged states to draft better capital punishment laws that might hold up. But privately he told friends, “There will never be another execution in this wwEach of the nine justices wrote his country.” own opinion. The opinions added up to 232 pages, making Furman the wordiest decision in Supreme wwBut of course, there were more Court history. A short, unsigned executions. Taking up the chief per curiam opinion announced justice’s suggestion, states went the result. back to the drawing board. They drafted new death penalty laws. wwAmsterdam heard the news of his Supreme Court victory on his wwFour years after Furman, the car radio in California; he had to Supreme Court upheld a new

‡ Furman was arrested again in 2004 for burglarizing a home in Macon. He pleaded

guilty and was sentenced to 20 years in prison at a medium-security prison in Georgia. He was paroled in 2016. 150

Lecture 15  Furman v. Georgia

death penalty law of Georgia’s the first person executed in the that used a bifurcated process. United States in a decade. He was First, a jury would vote on the shot to death in a prison yard question of guilt or innocence. in Utah. Then, if the verdict was firstdegree murder, the jury would wwBut the Furman decision meant hear evidence of both aggravating that 589 inmates on death row and mitigating factors before would be resentenced to life voting again whether to impose in prison. As the years went the sentence of death. On January by, 322 of those prisoners were 17, 1977, Gary Gilmore became eventually paroled.§

Beyond dispute, innocent people have been executed in America. Many more innocent people have experienced the fear and desperation of death row. To take the liberty of an innocent person is one thing; even the best systems of justice are not perfect. But to take the life of an innocent person—that just shouldn’t happen. The court in Furman didn’t take the bold step of ensuring that no innocent person will ever again be executed, but credit the court for making that sad prospect less likely.

READINGS Bedau, ed., The Death Penalty in America. Oshinsky, Capital Punishment on Trial.

§ About one-third of the parolees eventually found their way back into prisons, most

of them for parole violations and nonviolent offenses. But five committed another murder. In addition, nine of the former death row inmates who were not paroled committed murders in prison. 151

Lecture 16

The Trial of Daniel Ellsberg


y late 1966, Secretary of Defense Robert McNamara began to think the long war in Vietnam might be unwinnable. He thought that future government officials and historians could benefit from a history of US decision making in Indochina, so he commissioned a study. McNamara gave the study staff access to his personal files as well as to memoranda from the White House and the Joint Chiefs of Staff, State Department records, and specially requested information from the CIA. The professional staff for the study came from the Pentagon, the State Department, universities, and think tanks, including the RAND Corporation. One of the first persons recruited to help with the study was Daniel Ellsberg, a RAND employee with prior government experience in Vietnam.


Lecture 16  The Trial of Daniel Ellsberg

The Pentagon Papers The Pentagon Papers was a massive work, with 7,000 pages bound into 47 volumes. wwIn early 1969, what would become seemed a choice between bad known as the Pentagon Papers and worse. was complete. More formally, it was referred to as U.S. DecisionwwAfter his election in 1968, Making in Vietnam, 1945–1968. Richard Nixon appointed Henry Pentagon officials classified the Kissinger as his national security study as top secret and published advisor. Kissinger asked Ellsberg only 15 copies. But why so much to prepare a study of Vietnam caution about a historical study? “options.” In presenting his evaluation, Ellsberg found that Kissinger shared his negative wwOfficials worried that information assessment of the odds of a contained in the Pentagon Papers, military victory. He hoped that if it became public, might make Kissinger would help push Nixon foreign governments hesitant to exit the morass of Vietnam. to engage in secret negotiations or provide secret assistance to the US government. Also, some wwAfter meeting with Kissinger, of the information contained in Ellsberg returned to his work at the report came from wiretaps RAND—and read the Pentagon and bugging devices. Should Papers. He read about the secret the information be released, it history of US support for French could jeopardize surveillance and efforts to crush independence sensitive sources of information. movements in Indochina in the 1950s. The more he read, the more Ellsberg came to see the war in wwMeanwhile, Ellsberg had grown Vietnam as not just bad policy, pessimistic about the chances of but as immoral. victory in Vietnam. The options 153

Lecture 16  The Trial of Daniel Ellsberg

wwBy summer 1969, it became clear to Ellsberg that Nixon had no intention of simply declaring victory and pulling out of Vietnam—yet there were no signs that American forces could decisively turn the tide of the conflict in their favor. It seemed to Ellsberg that the US faced the prospect of a war without end. Thousands of American and Vietnamese lives would be lost.

Anthony Russo, an antiwar friend. From there, they went to the offices of an advertising agency run by Russo’s girlfriend. Using a Xerox machine, Ellsberg and Russo began the time-consuming process of photocopying the Pentagon Papers. They didn’t leave the office until the next morning, after which Ellsberg returned to RAND to replace the volumes in his safe.

wwEllsberg became convinced that if wwThe next night, and for many the public knew what was in the nights thereafter, the copying Pentagon Papers, it would apply continued. Ellsberg knew that the pressure that might finally what he was doing was a crime. bring an end to the war. When He fully expected the day would Americans saw how they had come when he would pay the been misled by past presidents, price for his actions. Ellsberg reasoned, they would no longer buy what Nixon was telling wwEllsberg carried the Pentagon them now. So he decided to bring Papers to Capitol Hill, where the content of the top secret he met with Senator William papers to light. Fulbright, a Vietnam policy critic. Ellsberg told Fulbright that he had a copy of a secret wwOne night, before he left his Santa study that might change public Monica office, Ellsberg slipped opinion about the war and left a a few volumes of the Pentagon copy of the Pentagon Papers with Papers into his briefcase and Fulbright’s legislative aide. took them to the apartment of


Lecture 16  The Trial of Daniel Ellsberg

Daniel Ellsberg

wwThe next year, Ellsberg stepped up his antiwar activities. He resigned from RAND and testified about Vietnam policy before Fulbright’s Senate committee. He even arranged to meet with Kissinger—whom he urged to read the Pentagon Papers and to reconsider the administration’s Vietnam policy. But Kissinger was not inclined to read the study. Working within the administration, it appeared, was an exercise in futility.

wwIn March 1971, Ellsberg turned over the Pentagon Papers to New York Times reporter Neil Sheehan. He and other reporters spent several weeks sifting through the thousands of pages of the report. They looked for reports and anecdotes that would tell a compelling story of how we got into the mess that had become the Vietnam War. On June 13, 1971, The New York Times ran a three-column front-page story containing excerpts from the Pentagon Papers. 155

Lecture 16  The Trial of Daniel Ellsberg

Publishing the Papers wwAt the White House, Nixon the government, Judge Murray read the story with a mixture Gurfein granted a temporary of disgust and relief. He told restraining order against the an aide that it was “criminally Times and scheduled another traitorous” for someone to hearing for June 17. have turned over the Pentagon Papers and for The New York wwIn the meantime, Ellsberg had Times to then publish them. But gone underground—moving he found some comfort in the from one Massachusetts hotel to fact that the Pentagon Papers another as the FBI looked for him. focused on the missteps of earlier He used payphones for all his administrations, not his. communications, including calls he placed to Ben Bagdikian of The Washington Post. wwHis first reaction was to keep out of it—let the story run its course. But Kissinger urged Nixon to take wwWith further publication at least steps to stop publication of further temporarily blocked in New York, stories based on the Pentagon Ellsberg contacted Bagdikian and Papers. In Kissinger’s view, the arranged to deliver an additional release of information threatened copy of the Pentagon Papers to ongoing secret negotiations. the Post. wwOn June 15, as The New York Times wwThis created a dilemma for published its third installment Bagdikian and his colleagues: The in the series, the Department Post was not legally bound by the of Justice filed a demand for restraining order that applied an injunction against further to the Times, but publishing publication in federal district in the face of that injunction court in New York City. After posed risks. There was even listening to arguments from the possibility that information lawyers for both the Times and published by the Post might result 156

Lecture 16  The Trial of Daniel Ellsberg

in a criminal prosecution under the Espionage Act. And the Post faced business risks that could jeopardize the company’s stock. Moreover, how could the Post guarantee that nothing they published would jeopardize the lives of intelligence agents? wwThe Post’s lawyers argued for caution, but reporters and editor Ben Bradlee wanted to push ahead. After a heated debate, the question of whether to publish was presented to publisher Katherine Graham, who gave the green light. wwOver the next several days, in courthouses in both New York and Washington, lawyers argued about whether the First Amendment permitted the government to enjoin publication of stories based on the Pentagon Papers. wwLawyers for the papers stressed that “prior restraints,” such as injunctions of this sort, were “presumptively unconstitutional”

and that the government “had a heavy burden of justification.” They said that that burden had not been met. wwJustice Department lawyers, on the other hand, argued that information contained in the classified documents might jeopardize sensitive relationships with foreign governments and put the lives of military personnel and government agents at risk. wwThe DC Circuit Court of Appeals voted to deny an injunction against publication in The Washington Post. Meanwhile, the Second Circuit Court of Appeals sent the question of injunctive relief against The New York Times to the district judge for further proceedings. wwThe issue was headed for a showdown in the United States Supreme Court. On June 26, 1971, one day after granting review in the Pentagon Papers cases, the nine justices of the Supreme Court heard oral arguments.


Lecture 16  The Trial of Daniel Ellsberg

wwTwo days later, Ellsberg surrendered to arrest at the federal courthouse in Boston. At the same time, a federal grand jury in Los Angeles was indicting him on charges of theft and espionage.

brought to justice. But federal espionage laws targeted most clearly those who provided foreign governments with classified information. And Ellsberg gave no information to the Soviet Union or China; he gave documents to members of Congress and the American press.

wwThe Nixon Administration trained its own sight on Ellsberg. E. Howard Hunt prepared a memorandum in which he wwThere was also a question about proposed building a file of the charge of theft. The defense damning information about could argue that thievery means Ellsberg to destroy his credibility. stealing something for personal Among Hunt’s several suggestions advantage, or at least the was, “Obtain Ellsberg’s files from advantage of a third party. But his psychiatric analysis.” here, the defense could argue, everything Ellsberg did was with an intent to serve the best wwFour days after hearing oral interests of his country. arguments, the Supreme Court announced a per curiam decision in New York Times Co. v. United wwAlso, the defense could raise States. The court held that the questions about the top secret government had not met its heavy classification. Can a historical burden of showing a need for an record, such as the Pentagon injunction against publication. But Papers, properly be classified as separate opinions filed by various top secret? justices revealed a deep split. wwThe government hoped to use Russo, Ellsberg’s fellow copier wwNixon stewed about the Supreme and coconspirator, to convict Court decision, but his main Ellsberg. When Russo was called focus was on seeing Ellsberg 158

Lecture 16  The Trial of Daniel Ellsberg

to testify before a grand jury about what he knew about the copying of the Pentagon Papers, he refused. He cited his Fifth Amendment privilege against self-incrimination. The Justice Department officials then promised Russo immunity from prosecution—which eliminated the right to take the Fifth. Even so, Russo still refused to talk.

On August 16, 1971, Russo was sentenced to jail for contempt of court. wwAfter Russo’s refusal to testify, the government drafted a new indictment against him, as well as Ellsberg. The two men were indicted on 15 counts relating to theft of government documents and espionage.

Two Trials of Two Men wwThere were actually two trials of Ellsberg and Russo, about six months apart. The first didn’t get very far. Because the government listened in on a conversation involving Russo’s defense lawyer, the trial was put on hold. Judge William Byrne declared a mistrial based on the lengthy delay and ordered a new jury empaneled.

Then, Ellsberg’s defense attorney, Leonard Boudin, suggested that the Pentagon Papers “belong to the people of the United States.” Because of this public ownership, Boudin told jurors, copying them and giving them to the press, so that the American people could be told their contents, should not be considered theft.

wwOpening arguments in the second wwAfter witnesses on both sides trial took place on January 17, 1973, testified—in addition to Russo in the federal courthouse in Los and Ellsberg themselves—the Angeles. Prosecutor David Nissen case looked like it would soon go summarized the government’s to the jury. But the jury never got evidence against the two men. its chance. 159

Lecture 16  The Trial of Daniel Ellsberg

wwOn April 27, 1973, Judge Byrne of aide John Ehrlichman and turned over to the defense a others. Then, news came out that shocking memo from Watergate Ehrlichman had met privately prosecutor Earl Silbert to with Judge Byrne to discuss the Assistant Attorney General Henry possibility of the judge becoming Peterson that said, “Gordon Liddy the new director of the FBI. The and Howard Hunt burglarized administration was trying to the offices of a psychiatrist influence Byrne’s handling of […] to obtain the psychiatrist’s the Ellsberg case by dangling the * files relating to Ellsberg.” The FBI job. government admitted that the break-in was committed by wwWith disclosures piling up and employees of the White House key Nixon aides dropping like pursuing a project launched by flies, Judge Byrne granted the the president. defense motion to dismiss all charges against the defendants based on the government’s gross wwWith the president implicated, misconduct. Byrne wrote, “The the basis for a mistrial grew bizarre events have incurably compelling. infected the prosecution of this case.” Ellsberg and Russo would wwIn Washington, within days, † not be going to jail. Nixon announced the departures

* Once Silbert’s memo reached the press, more details emerged. The press reported

the names of three Cuban American Bay of Pigs veterans who committed the breakin. Two of them were the same men who had been arrested inside the Watergate offices of the Democratic National Committee—a crime committed nine months after they hit the office of Ellsberg’s psychiatrist. † White House lawyer Bud Krogh described the Pentagon Papers as “probably

the seminal event” that caused the downfall of Nixon. The break-in of Ellsberg’s psychiatrist’s office helped form the basis of obstruction of justice and abuse of power charges in two of the three impeachment articles reported by the House. 160

Lecture 16  The Trial of Daniel Ellsberg

The Pentagon Papers cases resulted in a strong decision affirming the right of a free press to publish even information that the government claimed threatened national security. The trial of Ellsberg and Russo affirms our right to be free from a government that invades the most sacred precincts of life, including our private revelations to our lawyers and our psychiatrists—our right to privacy.

READINGS Ellsberg, Secrets. Herring, ed., The Pentagon Papers. Prados and Porter, eds., Inside the Pentagon Papers. Rudenstine, The Day the Presses Stopped. Salter, The Pentagon Papers Trial.


Lecture 17

The Road to Roe v. Wade


a ch of the personal possible choices relating to childbirth—the choice to try to become pregnant or father a child, the choice not to become pregnant, and the choice to terminate a pregnancy—has been the subject of the Supreme Court’s attention during the past century.


Lecture 17  The Road to Roe v. Wade

Mandatory Sterilization wwIn 1924, Carrie Buck was mother. Her commitment later committed to the Virginia that year was most likely an State Colony for Epileptics and effort by the family to save its Feebleminded at the age of 18. She reputation. had attended school only through sixth grade and lived with a foster wwIn 1924, Virginia had adopted family. Shortly before entering a statute that authorized the the institution, Buck had given sterilization of the intellectually birth to an illegitimate child. disabled. The law had been This, it seems, was the reason pushed by proponents of her foster family sent her there. eugenics. Supporters of the But she could scarcely be blamed law believed that doctors were for the pregnancy; she had been refusing to sterilize women who raped by a nephew of her foster deserved sterilization because

Carrie Buck (left) and Emma Buck (right) 163

Lecture 17  The Road to Roe v. Wade

they were afraid of prosecution. The new law meant to remove that threat.

wwBut the Supreme Court, by an eight-to-one vote, disagreed. The court accepted that Buck was “feeble-minded” and “promiscuous” and that it was wwDr. Albert Priddy saw Buck as in the best interest of the state a genetic threat to society. He to sterilize her. Writing for the called her “incorrigible” and said court, Justice Oliver Wendell that without sterilization, there Holmes wrote that the state’s was a high risk she would produce interest in preserving the public offspring. So Dr. Priddy filed the welfare outweighed Buck’s necessary paperwork to sterilize interest in bodily integrity and Buck. His request was approved personal choice. by his institution’s board of directors. wwBuck received a tubal ligation and was later released from the wwBut Buck’s legal guardian institution. challenged the sterilization order in court. And that challenge Buck’s daughter, who had eventually made its way to the erroneously been labeled Supreme Court. “feeble-minded” after a quick examination by a eugenics field wwBuck, through her guardian, worker, turned out to be a solid argued that involuntary student, even being listed on her sterilization would violate her school’s honor roll. right to due process and equal protection under the Fourteenth Amendment. The right to wwThe court’s ruling in Buck v. Bell procreate, they argued, was a encouraged dozens of additional fundamental right—and it was a states to enact compulsory right that could not be denied by sterilization laws. Virginia’s state law. sterilization law remained on the books until its repeal in 1974. 164

Lecture 17  The Road to Roe v. Wade

wwBuck v. Bell was not the only Supreme Court case to consider mandatory sterilization. In 1942 in Skinner* v. Oklahoma, the court considered an Oklahoma law that required the sterilization of all three-time felons and decided

that the law violated one’s right to equal protection of the laws. After Skinner—and after the public learned about the eugenics program of Nazi Germany— sterilization rates dropped dramatically.

Contraceptive Use wwBy the 1960s, restrictions on the use of contraceptives became more of an issue than sterilization laws. Two cases challenging restrictions on the distribution of contraceptives reached the Supreme Court. wwIn the case of Griswold v. Connecticut, the court found a state law banning the distribution of contraceptives to be an unconstitutional burden on “the right of marital privacy,” which Justice William O. Douglas found to be implicit in the Bill of Rights. Douglas

argued that the emanations of the First, Third, Fourth, and Fifth Amendments made obvious the framers’ intention to create “a zone of privacy” that the state could not invade. And threatening married couples with jail time for using contraceptives was just such an unconstitutional invasion. wwGriswold recognized a right of marital privacy—a right that included the right to possess and use contraceptives. But it left open the question of whether the Constitution protected the

* An Oklahoman named Jack Skinner made the mistake of stealing some chickens.

It was his third felony, and as part of his punishment, he was ordered to undergo a vasectomy. Skinner sued, and the Supreme Court sided with him. 165

Lecture 17  The Road to Roe v. Wade

right of unmarried persons to use contraceptives. wwSome states argued that allowing single people to use contraceptives would lead to promiscuity. A former medical student named William Baird challenged the legal validity of that argument.

booked, entered a not guilty plea, and was released on bail. wwIn state court, Baird was convicted in a nonjury trial. Then, the Massachusetts Supreme Court, on a four-to-three vote, upheld both his conviction and his three-month prison sentence.

wwBaird spent 35 days in jail before the US Supreme Court agreed to wwMassachusetts law allowed hear his appeal. The case, known only married persons to obtain as Eisenstadt v. Baird, was decided contraceptives and only with in 1972. The majority voted to a doctor’s prescription. In overturn Baird’s conviction. 1967, Baird showed up for a Writing for the court, Justice speaking engagement at Boston William Brennan inserted University with several boxes language that would prove useful of contraceptives. During his in another majority opinion speech, Baird asked for volunteers decided soon thereafter, Roe v. to distribute contraceptive foam Wade. Brennan wrote: and condoms to anyone in the audience who wanted them. Then, he asked the police officers If the right of privacy means anything, in the hall to arrest him. His goal, it is the right of the individual, married of course, was to bring a test case or single, to be free from unwarranted challenging the Massachusetts governmental intrusion into matters ban on the distribution of so fundamentally affecting a person as contraceptives to unmarried the decision whether to bear or beget persons. He was arrested and a child.


Lecture 17  The Road to Roe v. Wade

Abortion Restrictions the doctor gave her the phone number of a lawyer.

wwOne of the most controversial decisions ever made by the US Supreme Court centered on the claim of a young Dallas woman named Norma McCorvey, who in 1969 became pregnant after having a relationship with a man who ended up skipping town. With 30 dollars to her name, McCorvey, all alone, said she couldn’t bear to think of carrying a baby.

wwMcCorvey met the lawyer, who said: I know a couple of young lawyers who are looking for a pregnant woman who wants an abortion. A woman just like you. They need a plaintiff in a lawsuit, to help them overturn the Texas law against abortions.

wwA friend told McCorvey that a doctor might be able to terminate her pregnancy. Interestingly, the word abortion was completely foreign to her. She visited her obstetrician—the same doctor who had delivered two previous babies she had given up for adoption. The doctor told her he did not perform abortions; in fact, if he learned of anyone doing them, he’d be obligated to report them. But before she left,

wwIn February 1970, McCorvey met the two lawyers who would take her case to the Supreme Court of the United States, Linda Coffee and Sarah Weddington. Weddington told McCorvey stories of shady doctors and botched back-alley abortions. Then, she asked McCorvey if she agreed that all women should have access to safe and legal abortions. She said, “Sure, of course.”†

† McCorvey converted to Catholicism, and by 1997, she was ardently pro-life and

even participated in antiabortion protests.


Lecture 17  The Road to Roe v. Wade

wwWeddington and Coffee filed wwMcCorvey delivered a baby, who suit against the state of Texas, she put up for adoption. But the and Norma McCorvey became birth of McCorvey’s baby did the lead plaintiff—Jane Roe—in not moot the case. The suit was the case that would eventually brought as a class action on behalf become known as Roe v. Wade. of not only McCorvey, but also But McCorvey was already about unnamed pregnant women in the six months pregnant, and getting state of Texas who might desire a case to the Supreme Court takes an abortion. years, not weeks. wwIn March 1971, the Supreme Court announced that it would hear the wwMcCorvey spent the next few case of Roe v. Wade. The court months smoking dope and had actually taken the case not to drinking, trying not to think decide the abortion issue, but to about her pregnancy. She wasn’t consider another question raised even present when her lawsuit by the case—specifically, whether was heard by a panel of three women and doctors who wished federal district court judges. The to challenge state abortion laws panel handed her a victory, of could go first to federal court sorts—striking down the Texas rather than going through all law that prohibited abortions possible appeals at the state except when necessary to save the level first. life of the mother. wwBut that victory proved hollow when District Attorney Henry Wade appealed the case and the order was stayed pending the appeal. Wade announced that he would prosecute any doctor who performed an abortion.

wwIn oral argument, Weddington suggested that the Constitution “gives protection to people” only after birth—until then, the woman’s right to choose should be in force.


Lecture 17  The Road to Roe v. Wade

wwBirth is not the point at which the vacancies remained unfilled. To court could ever draw the line; the surprise of the three most an abortion at eight and a half liberal justices on the court, months just seems too close to the jurisdictional issue was infanticide. But the court seemed suddenly off the table. Another equally uncomfortable with the case decided the same day line proposed by the assistant allowed a bookstore owner to attorney general of Texas, Jay challenge a state obscenity law in Floyd. Asked when a fetus has federal court before exhausting full constitutional protection, state court remedies. The same Floyd answered, “At any time. principle would apply in Roe. There is life from the moment of impregnation.” wwThere were three solid votes to strike down the Texas law: Justices Marshall, Brennan, and wwWhen Floyd pointed to a section Douglas. Two justices favored a of the state’s brief showing narrower ruling against portions the development of the fetus of the law. Justices Harry beginning at seven days after Blackmun and Potter Stewart conception, Justice Thurgood seemed ready to base their Marshall jumped in. “Well, decision on the right of doctors, what about six days?” “We don’t not women—a right to exercise know,” Floyd replied. “But this their professional judgment free statute goes all the way back of state interference. Chief Justice to one hour,” Marshall pointed Warren Burger assigned the task out. “There are unanswerable of writing the court’s opinion to questions in this field,” Floyd Justice Blackmun. conceded. wwOnly seven justices gathered in the Supreme Court conference room to decide the Roe case. Two

wwBlackmun poured hundreds of hours into crafting an opinion. He worked through the fall and


Lecture 17  The Road to Roe v. Wade

winter doing research in the court’s library. He read both medical and legal texts, taking careful notes. Abortion had generally been legal in the United States until the 19th century. The bans were put in place to protect pregnant women against what was, at the time, a dangerous operation. But by the 1970s, abortions were safer than childbirth. To Blackmun, that fact argued strongly in favor of legalizing early abortions.

wwBlackmun spent much of the summer of 1972 in Minnesota researching abortion at the Mayo Clinic’s library. He reworked his draft to make the right of privacy explicit. Women had a constitutional right to choose whether or not to bear a child. Here, the contraceptives cases provided precedent. The court said in Eisenstadt that women should be able to choose whether or not to bear a child.

wwThe right to an abortion, he wrote, was not absolute. The state had compelling interests in regulating abortions to protect wwIn May of 1972, Blackmun finally women’s health, especially circulated his draft opinion to the after three months, when risks other justices. But the opinion increased. And at some point, the was short on analysis. Blackmun interest of the state in protecting became convinced of his opinion’s the life of the fetus overrode shortcomings and withdrew it. the privacy interest. For lack of a better place to draw the wwMeanwhile, Justices William line, Blackmun said that point Rehnquist and Lewis Powell came about six months into a joined the court. Blackmun urged pregnancy—and Roe’s trimester that Roe be reargued the next framework emerged. term, and the court voted to do just that.


Lecture 17  The Road to Roe v. Wade

wwBlackmun also declared that a fetus was not a person in the constitutional sense. The right to liberty under the Constitution attaches only after birth.

wwThe public reaction was even stronger. The state of Texas filed a petition for rehearing, comparing the decision to Dred Scott.

wwThe case was reargued in October. Six justices joined Blackmun in a seven-to-two decision issued on January 22, 1973.

wwRoe v. Wade was more the beginning of the abortion debate than the end of it. The core liberty protected by Roe remains (as of 2019), but the court has abandoned Roe’s trimester framework. It now upholds state regulations that do not pose “an undue burden” on the right.

wwIn his dissent, Justice Byron White offered strong words: I find nothing in the language or history of the Constitution to support

Roe v. Wade changed America’s politics by becoming a litmus test for candidates in both major parties.

the Court’s judgment […]. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of


judicial review.

McCorvey, I Am Roe. Wawrose, Griswold v. Connecticut.


Lecture 18

The Right to an Intimate Life


 July 5, 1982, at about 10:30 a.m., Michael n Hardwick, age 28, had just finished his bartending shift at the Cove, a gay nightclub in Atlanta. He grabbed a beer on the way out of the club and started walking home, drinking the beer as he walked. When he was done, he tossed it. Patrolman Keith Torrick saw Hardwick drinking the beer. Drinking in public was a misdemeanor. Torrick was tired of urban “garbage,” as he called it, and drinking in public in the morning qualified as garbage. It was time to send a message.


Lecture 18  The Right to an Intimate Life

Bowers v. Hardwick wwOfficer Torrick handed Hardwick a ticket for violation of the city’s public drinking ordinance. The ticket showed a court date of eight days later. “I’m counting on you to show up,” Torrick told Hardwick. “If you don’t, I’ll take it that you’re laughing in my face. And I will come find you. And I will lock you up.”

in to find him. Torrick noticed that the back-bedroom door was ajar and pushed the door open to find Hardwick and another man engaged in oral sex. He also noticed a bowl of marijuana nearby. wwTorrick arrested the two men, charging them with sodomy and drug possession. He handcuffed them and drove them to the city jail.

wwWhen Hardwick failed to show, Torrick got an arrest warrant and headed to Hardwick’s address. A houseguest answered the door wwThe local chapter of the ACLU and told Torrick that Hardwick had been looking for the right was not in. When Hardwick case to challenge Georgia’s learned later about Torrick’s visit, sodomy law on constitutional he dashed downtown and paid his grounds. They did not want a case 50-dollar fine for public drinking. involving prostitution, public sex, or nonconsensual relationships. John Sweet, an attorney for wwSomehow, word that Hardwick the ACLU, said they wanted “a had paid his fine never made clean case.” And this was it—sex it back to Torrick. So three between two consenting adults in weeks later, he went looking for the privacy of the bedroom. Hardwick again. wwAgain, Hardwick’s houseguest answered the door. But this time, Hardwick was home, and the houseguest invited Torrick

wwACLU lawyers persuaded Hardwick to fight the charge. Hardwick said, “I realized that I couldn’t live with myself if I 173

Lecture 18  The Right to an Intimate Life

walked away from this. I kept wwBut there is more than one way to bring a case to an appellate thinking about other gays who court. The ACLU on behalf of could lose their jobs if they Hardwick filed an action in were ever caught. I didn’t have a federal district court seeking to prominent position. I could afford have the Georgia sodomy law to come out publicly.” declared unconstitutional. The complaint said that Hardwick wwThere were risks. With a plea was a practicing homosexual and bargain, Hardwick could almost risked having the law enforced certainly avoid the risk of jail against him in the future. time. If convicted after trial, he could, at least in theory, receive a sentence of up to 20 years. wwBy the time Hardwick brought his challenge against the Georgia law in 1983, only 24 states still wwUnfortunately, the Fulton County had sodomy laws in place, and district attorney made things attitudes toward gays and gay more difficult for the ACLU by sex were moving toward greater declining to prosecute Hardwick tolerance.* on the sodomy charge, later saying: “I just didn’t think a jury would have convicted him, from wwHardwick argued that the the privacy angle.” Georgia sodomy law was unconstitutional for a whole laundry list of reasons. He alleged

* Up until the 1960s, every state in the US had laws prohibiting sodomy in some form.

And state sodomy laws generally applied to both homosexual and heterosexual couples—even to married couples. Nonprocreative sex was considered immoral. In 1971, when the American Psychiatric Association removed homosexuality from its list of psychiatric disorders, the issue of gay rights began to get national attention after having long been a forbidden topic of discussion. And states began wiping sodomy laws off their books. 174

Lecture 18  The Right to an Intimate Life

that it violated his right of privacy under the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. In addition, he argued that it violated his rights to equal protection of the law and freedom of association. wwThe problem for Hardwick was that the US Supreme Court in 1976 had summarily affirmed a lower court ruling that had upheld Virginia’s anti-sodomy law. And the court had only gotten more conservative since that decision. wwIn 1983, a federal district court judge in Georgia dismissed Hardwick’s challenge, citing the 1976 Supreme Court decision as precedent. Hardwick appealed to the Eleventh Circuit Court of Appeals. wwA three-judge panel heard arguments in the Hardwick case. The court ruled, two to one, that the Georgia sodomy statute violated the Fourteenth Amendment’s guarantee of personal privacy. The court

said that the 1976 Supreme Court summary ruling should be viewed narrowly as a case decided on procedural grounds, not constitutional grounds. In the court’s view, the Supreme Court had left the privacy issue open. Georgia’s attorney general, Michael Bowers, vowed to appeal. wwIt takes the votes of four justices for a grant of cert—that is, a decision to grant review. Justices Byron White and William Rehnquist, both dissenters in Roe v. Wade, wanted to hear the case and reverse. Liberal justices William Brennan and Thurgood Marshall were optimistic they could get five votes to affirm and believed that they might never get a better chance to strike down sodomy laws. And that made four. Bowers v. Hardwick was going to Washington. wwHarvard law professor Laurence Tribe coauthored Hardwick’s brief and argued his case. Tribe argued that what was at stake here was a right to an intimate life. This wasn’t “a homosexual 175

Lecture 18  The Right to an Intimate Life

case” at all. The Georgia sodomy law applied not just against same-sex couples, but against all couples—even married couples. It wasn’t likely that Georgia would ever choose to enforce the law against a married couple having sex in a bedroom, but that was part of the problem with the law. It was a law likely to be enforced in an arbitrary and discriminatory manner. wwFor its part, Georgia conceded that the law would be unconstitutional were it to be applied against a married couple. Marital privacy, Georgia said, has traditionally been protected. Gay sex has not. wwGeorgia’s assistant attorney general, Michael Hobbs, concluded by telling the court that it “must be wary of creating a regime in the name of constitutional rights which

is little more than one of selfgratification or indulgence.” States had a right, he said, “to maintain a decent society.” wwThe justices peppered Tribe about the limits of his argument. Would laws against bigamy be unconstitutional? Tribe said marriage was a state-sanctioned relationship the state had a right to protect. What about sex in the back of an automobile? Homes are special, said Tribe, pointing out that the framers were especially concerned about privacy in the home, as shown by the language of the Third† and Fourth Amendments. wwWhat about incest in the private home? Or prostitution? Tribe said that the Constitution only protects “intimacies that are not physically harmful and that are consensual and non-commercial.”

† The Third Amendment prohibits the quartering of soldiers in private homes during

wartime—a concern inspired by the British, who did exactly that in homes around Boston before the Revolutionary War. This amendment has never been the basis for a decision by the Supreme Court. 176

Lecture 18  The Right to an Intimate Life

wwWhat about a hotel room overnight? Tribe said that a hotel overnight would not receive “the same degree of protection” as a home but that he didn’t know “precisely where the line would be drawn.” ‡ wwTribe conceded that laws against homosexual intimacies had a long history. But, he said, the Constitution should not be read to “freeze that historical vision into place.” wwBoth sides understood that the case would be decided by swing justice Lewis Powell, who worried about whether the court could come up with “a limiting principle” that would not open the door to legalized polygamy, prostitution, and the like. wwPowell voted to affirm—that is, to uphold the decision below that the Georgia law was

unconstitutional. He found, he thought, his limiting principle: If Hardwick couldn’t change his sexual orientation, then it would be “cruel and unusual punishment” to imprison him for acting on it with a consenting partner. wwChief Justice Burger pushed hard on Powell to change his vote. A week after the conference, Powell told his fellow justices he was switching his vote. Burger was delighted. He reassigned the opinion to Justice White. wwWhite’s opinion for the court was short on analysis. He said that the due process clause should be read only to protect liberties that are “deeply rooted in this Nation’s history and tradition.” And sodomy, White said, surely is not. If a state thinks sodomy is immoral, then that should be good enough.

‡ Throughout the 1960s and 1970s, the Supreme Court had developed and

expanded the doctrine that the Constitution protects privacy as it relates to home life and fundamental personal decisions. It had struck down laws banning the use of contraceptives, laws prohibiting abortions, laws criminalizing the viewing of obscenity in the home, and a law prohibiting certain types of family living arrangements. 177

Lecture 18  The Right to an Intimate Life

wwJustice Powell, who added the fifth vote, wrote separately, saying that if a state were to have locked up Hardwick for “a long duration, it would create a serious Eighth Amendment issue.”

Hardwick said that when he heard he had lost his case, “I just couldn’t believe that in this day and age they could make a decision that turned me into a second-class citizen.” But Hardwick remained hopeful, saying, “I laid a foundation for future change.”

wwGay rights groups expressed outrage at the decision.

Justice Powell said that the Hardwick decision couldn’t be squared with Roe and other privacy cases. “When I had the opportunity to reread the opinions a few months later, I thought the dissent had the better of the arguments.”

Lawrence v. Texas wwIt took the court only 17 years to wwThe court’s membership changed. overturn Bowers v. Hardwick—a Justices Anthony Kennedy,§ blink of an eye in constitutional Antonin Scalia, Clarence Thomas, history. And it turned out that David Souter, Stephen Breyer, and in the intervening years, not a Ruth Bader Ginsberg joined the single state chose to recriminalize court, and four of them seemed sodomy. In fact, in the years after sympathetic to gay rights. Justice the court’s ruling, 11 more states John Paul Stevens, one of the repealed their sodomy laws. dissenters in Bowers, was still on the bench.

§ Justice Kennedy had already authored an important gay rights decision. In 1996,

the Supreme Court struck down a Colorado amendment that prohibited state and local laws that banned discrimination based on sexual orientation. Justice Kennedy concluded that the amendment was “born of animosity” toward gays. 178

Lecture 18  The Right to an Intimate Life

wwThe case that would overturn Bowers began in Texas, one of only four states that criminalized same-sex sodomy, but not heterosexual sodomy. wwOn September 17, 1998, a dispatcher in Houston reported a weapons disturbance at an apartment. Four officers arrived on the scene. The call about an armed man was a false alarm—a dumb move by a jealous lover— but the officers didn’t know that. They climbed a stairwell and knocked on the apartment door. It was unlocked and opened slightly when they knocked.

and demanded the right to call a lawyer. wwOne of the officers called an assistant district attorney to ask whether it was a crime to engage in gay sex in a home, rather than a public place. The lawyer had to look it up. Then, he told the officer that the statute didn’t say anything about the location of the offense. wwThe officer decided to arrest both Lawrence and Garner on sodomy charges. According to the deputy, the arrests would never have happened had the officers been shown respect. The officer also said, “If this had been two women, it probably wouldn’t have went anywhere.”

wwTwo of the officers, guns drawn, entered a back bedroom. They saw two men, John Lawrence and Tyron Garner, having sex—or maybe they didn’t. Lawrence and wwLawrence and Garner decided Garner claimed that the sex never to use their arrests to test the happened. constitutionality of the Texas sodomy law. They could have easily beaten the charge by raising wwWhen one of the officers flipped reasonable doubts about their on the light, Lawrence became alleged sex act, but they had no belligerent. He told the officers interest in doing so. that they had no right to be there


Lecture 18  The Right to an Intimate Life

wwThe day after their arrests, Lawrence and Garner stood before a hearing officer acting as a judge. The DA announced that both men were charged with “homosexual conduct.”

wwThe decision in Lawrence v. Texas was announced by Justice Kennedy. The court overruled Bowers. Lawrence won.

wwIn his dissent, Justice Scalia wrote, “Today’s opinion is the product of a Court, which is the product of wwWord of the charge seeped into a law-profession culture that has Houston’s gay community. largely signed on to the so-called Activists had been waiting for years homosexual agenda.” Bowers for a chance to challenge the Texas had concluded that homosexual sodomy law. Now they had one. sodomy was not a fundamental Soon, Lambda Legal, the nation’s right, and according to Scalia, premier gay rights organization, that conclusion was “utterly agreed to take the case. unassailable.” wwIn a Harris County courthouse on December 22, Garner and wwReactions to the decision varied. Lawrence pleaded no contest. Joyous gay rallies broke out The county judge fined each 125 across the country. Fred Phelps, dollars. a Kansas minister who made antigay campaigning his life’s work, said of the decision, “It’s wwA Texas appeals court affirmed the death knell of American the convictions based on Bowers civilization. It’s a covenant v. Hardwick. with death and an agreement with Hell.” wwIn 2002, the Supreme Court announced it would hear the case. READINGS The court asked attorneys for Carpenter, Flagrant Conduct. both sides to brief the question Richards, The Sodomy Cases. of whether Bowers should be overruled. 180

Lecture 19

The Ruby Ridge Trial


 the 1980s, the mountainous and sparsely n populated panhandle of northern Idaho became a magnet for right-wing extremists of all stripes, including government-haters, minority-haters, and immigrant-haters. It was a land that called to Randy and Vicki Weaver. They found property they liked on a ridgetop, where they thought they’d be free to live the lives that God intended them to live—free from meddlesome government interference. But before long, things got tragically out of hand.


Lecture 19  The Ruby Ridge Trial

Visions of Liberty in the Mountains wwVicki Jordison and Randy Weaver grew up in Iowa. They began dating in 1970 and married the next year. By all accounts, they settled into a happy, normal, domestic life. wwThat all began to change in 1978, when Vicki read a book that shifted her worldview. The book was The Late Great Planet Earth, written by Hal Lindsey, who applied prophesies of the Old Testament to 20th-century events. He concluded that we were now in what he called the end time. A nuclear holocaust and Armageddon were just around the corner. But Jesus was returning soon to earth. Violence and pestilence would fall upon the planet. Christians would be persecuted, and then there would be the Rapture. True believers would join Christ in paradise. wwVicki and Randy began planning to move to a mountaintop. They wanted to be as far as possible from false governments,

desperate people, and hunters of good Christians like themselves. wwPoring over her King James Bible, Vicki drew lessons for how to prepare for the end time. In Matthew, she encountered the passage that reinforced her vision of their future: “Then let them which be in Judea flee into the mountains.” wwVicki and Randy slipped further and further away from mainstream life. Randy slept in a flak jacket with a loaded gun under his pillow. In an interview with a reporter for a local paper, they said they planned to build a house in the woods with a defensible 300-yard “kill zone” around its perimeter. wwIn 1983, Randy and Vicki left Iowa for the mountains of Idaho. They found a hilltop strewn with boulders, perfect for defending the property. They bought 15 acres and began building a cabin.


Lecture 19  The Ruby Ridge Trial

wwBy the mid-1980s, a racist rightwwIn the fall of 1989, Randy told Gus wing movement had based itself that he was short on cash. Then, in northern Idaho. It went by Gus asked if Randy would sell the name of Aryan Nations. him two sawed-off shotguns. (Or Some members of Aryan Nations maybe it was Randy who made formed a splinter group called the offer to sell the guns; the two The Order, which embarked men’s stories would differ on that on a crime spree. The Order point later on.) pulled off bank and armored car robberies, bombed synagogues, wwTwo weeks later, Randy presented and murdered at least two people. Gus with two shotguns sawed Indictments and prosecutions five inches shorter than federal followed. But bombings law allowed. Soon after, two ATF continued, and the federal agents contacted Randy. They government was determined to said they had solid evidence that find those responsible. he’d violated federal gun laws. But they offered him a deal: Become an informant on the Aryan wwIn July 1986, Randy showed up Nations and the gun charge at the Aryan Nations congress in would be dropped. But Randy Hayden Lake. The gathering was would have no part of it. also attended by an undercover informant for the Bureau of Alcohol, Tobacco, Firearms and wwA warrant was issued for Randy’s Explosives (ATF). His name was arrest. Vicki responded by filing Kenneth Fadeley, but he used the an affidavit with the Boundary name Gus. He introduced himself County clerk. The affidavit gave to Randy, and the two men met what she called “legal notice several times over the next that we believe we may have three years. to defend ourselves […] from physical attacks” by the federal government.


Lecture 19  The Ruby Ridge Trial

wwAs a result of Vicki’s affidavit, wwRandy’s court date came and ATF agents were reluctant to went, and he was a no-show. So simply drive up to the Weavers’ a failure-to-appear warrant was cabin and attempt to arrest issued for his arrest, and the Randy. Instead, they decided to case was sent to the US Marshals pose as stranded motorists on the Service. road down the mountain from Randy’s cabin. A neighbor radioed wwThe Weavers sent a stream of the agents when he saw that threatening letters to the federal Randy had left his cabin. When government. The deputy US Randy stopped his car, three marshal was concerned. He agents and the county sheriff decided to call on the Special arrested him at gunpoint. Operations Group, an elite marshals force used for raids and difficult fugitive cases. wwThe next afternoon, at the federal building in Coeur d’Alene, Randy pled not guilty to the firearms wwThe marshals’ task was charge. He was released on a bond complicated because the and a court date was set. Weaver household included four children—Sara (age 16), Sammy (age 14), Rachel (age 9), and Elisheba (newborn)—and Vicki wrote a letter to the US a troubled teen they had taken attorney for Idaho in which in, Kevin Harris. The marshals she promised that the Weavers worried. Randy made a practice of “will not bow to your evil sending his gun-toting children commandments […] whether we out to greet strangers. live or whether we die.”


Lecture 19  The Ruby Ridge Trial

The Standoff at Ruby Ridge wwBy early 1992, what was being called the standoff at Ruby Ridge was attracting national attention. Famous press figures requested interviews with the Weavers, but all except one was denied. They agreed to talk with a reporter who wrote for a small local weekly paper.

They were there to scout out positions for an undercover plan to capture Randy. wwNear the end of the operation, three marshals headed back down the mountain to rejoin their other comrades. But the Weavers’ yellow Lab, Striker, had caught a whiff of the agents and ran down the road to investigate, followed by Sammy and Kevin.

wwIn the interview, Randy said the feds were more concerned about “shutting our mouths” than they were about shotguns. The wwStriker closed in on the retreating Weavers claimed not to be Aryans marshals, Arthur Roderick, Larry or Nazis, just people who came Cooper, and Billy Degan. The to Idaho to “escape religious dog cornered Cooper, and Kevin persecution.” But now, Vicki said, ran up behind the dog. Cooper “there’s nowhere left to escape shouted, “Back off! US marshal!” our lawless rulers.” Seconds later, from behind a stump, Degan rose and shouted, “Freeze! US marshal!” wwThe Weavers were making the federal government look weak and silly. Pressure mounted wwThen the shots began. Stories on the Marshals Service to do differ as to who shot whom first. something. wwThe government story is that Kevin fired first and fatally wwA Special Operations Group wounded Degan in the chest. surveillance team consisting of Then, the story goes, Cooper six marshals entered the Weaver responded by firing two threeproperty on August 21, 1992. 185

Lecture 19  The Ruby Ridge Trial

round bursts at Kevin but missed of bullets. Kevin claimed he fired him. Roderick, meanwhile, was only to protect Sammy. But it was farther down the path. He worried too late—Sammy had been hit. that the dog might give away the location of the other marshals, so wwReports of a marshal dead he fired and killed the dog. on Ruby Ridge set off alarm bells in Washington. FBI officials responded by revising wwBut there is one critical fact that the agency’s normal rules of the government stories cannot engagement. Under the revised account for: how Sammy ended rules, agents would be allowed up dead with a bullet in his back. to shoot to kill any adult at Ruby Ridge seen in possession of a wwThe marshals insisted that firearm, and—this is the critical they had no clue Sammy had revision—that was true whether been killed until his body was or not that adult posed a risk of discovered days later in a wooden imminent bodily harm. outbuilding that the Weavers called the birthing shed. But when the agents’ weapons wwThe FBI’s Hostage Rescue Team, were finally gathered up, it was including its most elite snipers, discovered that seven rounds arrived in Idaho early the next were missing from Degan’s gun. morning. When briefed on their Cooper had claimed that Degan assignment at Ruby Ridge, snipers never fired his own gun before he were told that if they observed an was fatally shot. adult carrying a weapon, deadly force “can and should” be used to take out the person. wwKevin later offered a different version of the events. He said that when Roderick shot his wwLon Horiuchi, a member of the dog, Sammy began firing at the FBI’s sniper team, staked out a marshals. Then, one of the agents position that gave a good view opened up on him with a barrage of the north side of the Weavers’ 186

Lecture 19  The Ruby Ridge Trial

cabin and the birthing shed. Horiuchi heard the sound of a helicopter somewhere behind him. Then, he saw two males running near the birthing shed. He would say later that he thought they might be getting ready to shoot at the helicopter. wwAs Randy reached for the shed door, a bullet tore through his arm. Randy, Kevin, and Sara dashed back to the cabin. As Vicki opened the door for them, Horiuchi fired again. This bullet ripped through Vicki’s brain and lodged in Kevin’s chest and arm.

wwNegotiation efforts for a surrender continued for a week. Finally, there was a breakthrough. Randy agreed to speak with Bo Gritz, a former Green Beret with rightwing views who was then running for US president on the Populist Party ticket. Gritz and two of Randy’s friends first convinced Kevin to surrender and receive medical treatment for his bullet wound. The Weavers surrendered the next day after a promise that Gerry Spence—probably the most famous defense attorney in America at the time—would represent Randy in his trial.

The Weaver Trial wwA grand jury indicted Kevin Harris for the murder of Agent Degan and indicted Randy for aiding and abetting in Degan’s death. Both defendants pled not guilty and spent the next eight months in jail.

antigovernment beliefs. Those beliefs, the government would argue, combined with an almost unbelievable stubbornness, resulted in the deaths of not only Degan, but also Vicki and Sammy. In Howen’s view, Randy and Vicki had conspired to create a criminal enterprise that dealt in illegal firearms and all but forced the shoot-out.

wwProsecutor Ron Howen wanted to make the jury see Randy as a man who held racist and 187

Lecture 19  The Ruby Ridge Trial

wwFor defense attorney Spence, wwThe courtroom was packed the case was about freedom of for closing arguments. Most religion and self-defense. The spectators came to hear Spence government’s decision to pursue deliver another of his legendary a conspiracy theory played into summations. For more than two Spence’s hands. It turned the case hours, Spence railed against into one about Randy’s beliefs. what he called a government What defense attorneys had most cover-up of its own ineptitude. feared was a narrow indictment He angrily shouted, “Marshals that would have excluded aren’t supposed to shoot little testimony about Randy’s out-ofboys in the back!” Spence told the-mainstream philosophy. jurors that this was indeed a murder case, “but the people who committed the murder have not wwOpening arguments were heard been charged.” in the Boise courtroom of US District Judge Edward Lodge in April 1993. Prosecutors described wwThe jury deliberations lasted the shooting of Degan as a coldlonger than any other in Idaho blooded murder. Spence insisted history. The jury’s task was that the evidence would show complicated by eight separate that Randy “had the right to charges, ranging from failure * be free.” to appear in court to firstdegree murder.

Who fired the first shots at Ruby Ridge? Based on what happened in the trial, the answer seemed to be that the government did.

* Because Spence worried what might happen if he put Randy on the stand—the jury

would see his stubbornness, racism, and hatred of the government—the defense waived its right to present any witnesses. 188

Lecture 19  The Ruby Ridge Trial

wwIn the end, the jury voted to Vicki violated the department’s acquit Kevin Harris on all charges own deadly force policy and and Randy on all major charges. “contravened the Constitution.” Randy was convicted of failing to appear in court and sentenced to wwIn 1995, a civil suit brought 18 months in jail. Following his by the Weaver family against release, Randy returned to Iowa, the United States was settled, where he became a sort of folk with the government agreeing hero to many on the far right.† to pay 3.1 million dollars in compensation for the deaths of Vicki and Sammy. And in 1997, a wwIn Washington, investigation into new inspection of the vicinity of what happened continued. The the shoot-out turned up the bullet Department of Justice prepared that had killed Sammy. It came a 542-page report on the case. It from Agent Cooper’s gun. concluded that the shot that killed

You might say that the Weavers simply wanted to enjoy the liberty of being left alone. Yes, they held hateful views, but if they expressed antigovernment and racist views, that is their right as Americans. They also had the right to stockpile weapons.

READINGS Spence, The Making of a Country Lawyer. Walter, Every Knee Shall Bow. ——— , Ruby Ridge.

† Randy published a book in 1998 about the siege at Ruby Ridge. He appeared at

gun shows, where he signed copies of his book. “Keep your powder dry” was his typical inscription. 189

Lecture 20

The Trials of Jack Kevorkian


a ck Kevorkian called his invention the Thanatron. It was an inexpensive contraption made of a jewelry chain, parts from an Erector Set, an old motor, an intravenous line, and three plastic bottles. One of the bottles contained a saline solution, another a barbiturate called Seconal, and a third potassium chloride.* Each of the three bottles connected to the IV line. The aim of this machine was to cause death—a humane, painless death. To accomplish the goal, Kevorkian would first open the saline drip. Then, the patient to whom the IV line was attached would flip a switch that would start a flow of Seconal for 60 seconds, enough to put the patient in a deep coma. The flipped switch also started a winding process, acting like a timer, which would open the flow of the potassium chloride after the flow of Seconal stopped. Potassium chloride would stop the heart.

* Potassium chloride is the same solution that is delivered in the final step of most

lethal injection procedures. 190

Lecture 20  The Trials of Jack Kevorkian

The Right to Die wwKevorkian, a 60-year-old doctor, hoped to advertise the Thanatron in local newspapers. If people knew about his machine, many would want to use it. Kevorkian had seen a lot of suffering in hospitals and nursing homes and believed that people with painful medical conditions should have the right to end their lives.

wwDoctors told Adkins and her husband that she could live for many years. But she didn’t want to—and she worried that if she waited too long, she wouldn’t be able to communicate her wishes. So Janet and Ron Adkins flew to Michigan to see Dr. Kevorkian.

wwKevorkian believed in his cause. He didn’t want anyone questioning his motives and wwThe newspapers turned him made clear that he would accept down. But his request to advertise no payment for his services. a suicide machine struck some Also, he understood that minds editors as newsworthy. And soon can change when it comes to an Dr. Kevorkian was attracting attention. wwIn 1989, several people who read about Kevorkian’s machine in Newsweek decided to contact him. One of those people was a 54-year-old teacher from Portland, Oregon, named Janet Adkins. She had led an active life, but she was suffering from earlyonset Alzheimer’s disease.

Dr. Jack Kevorkian


Lecture 20  The Trials of Jack Kevorkian

important question like ending one’s life. He insisted that any patient must express “a firm, voluntary, and unwavering wish to die.” wwKevorkian met four separate times with Janet and Ron. He discussed with them Janet’s medical history and prognosis and explained how his suicide machine would work. wwWhen it became clear that Janet was adamant about her desire to die, Kevorkian began looking for a place to put his Thanatron into action. Eventually, he settled on using his 1968 Volkswagen van. He bought curtains for the windows and installed a cot. wwKevorkian and his sister went to Janet’s hotel. Janet said goodbye to her husband. Then, the three drove to a nearby campground. Kevorkian hooked Janet up to a heart monitor and attached an IV line from the Thanatron to her arm. Janet’s last word was “Hurry.”

wwWhen the monitor showed a flat heart rate, Kevorkian called the police. He was arrested and placed in jail—but not for long. As it turned out, there was no law in Michigan prohibiting assistance with a suicide. wwThe day after Janet’s death, her husband Ron held a press conference in Portland. Ron read a statement that he said was written by Janet shortly before she ended her life. She wrote, I have Alzheimer’s disease and I do not want to let it progress any further. I do not want to put my family or myself through the agony of this terrible disease.

wwA reporter for The New York Times interviewed Kevorkian, who said “My ultimate aim is to make euthanasia a positive experience. I’m trying to knock the medical profession into accepting its responsibilities.” wwJanet Adkins was the first. But before Kevorkian was done, more


Lecture 20  The Trials of Jack Kevorkian

than 130 people would obtain his help in ending their lives. Not all of his patients were terminally ill.† Kevorkian believed that clearheaded adults should have the right to choose death. Incurable

diseases and pain and suffering might often be the reason for such a choice, but Kevorkian seems to have been willing to accept a range of other reasons as well.

Assisted Suicide wwBy the end of 1991, after just the more. He called his new device first three of Kevorkian’s many the Mercitron. assisted suicides, Michigan suspended his license to practice wwDr. Kevorkian had become the medicine. Kevorkian could no man to see if you wanted help longer legally obtain the drugs for ending your life. And Michigan his Thanatron. His new method authorities were not happy of choice was to place a mask over about it. By the end of 1992, with his patient’s nose and mouth. A Kevorkian’s death toll mounting, tube connected the mask to a the state decided to act. On cylinder of carbon monoxide. The December 15, Michigan governor patient started the flow of the gas John Engler signed a law making by releasing a valve. Death would it a crime to assist in a suicide. take longer than it did with his Thanatron, up to 10 minutes or wwThomas Hyde was only 30 years old, but his body had already been

† A study by the Detroit Free Press indicated that only about 40 percent of Kevorkian’s

patients had been diagnosed with a terminal illness and that at least five of his patients had histories of depression. The study also suggested that Kevorkian sometimes failed to follow even his own guidelines; at least 19 of his patients died less than 24 hours after first meeting with Kevorkian. 193

Lecture 20  The Trials of Jack Kevorkian

ravaged by ALS, Lou Gehrig’s disease. He was unable to walk, slurred his speech, couldn’t control bodily functions, and had difficulty swallowing. Before his diagnosis, Hyde had been an active outdoorsman. He couldn’t stand it anymore. wwHyde contacted Kevorkian, and the assisted suicide took place in Kevorkian’s van in August 1993. One month later, Kevorkian was charged with murder. The law made it a crime to “knowingly provide the physical means or participate in the act of suicide.” But the law excluded acts when the “intent is to relieve pain.”

law did not apply to Kevorkian because his aim was always to eliminate suffering and that death was a mere consequence of his goal. The jury seemed confused by the law. wwThe jury deliberations lasted nine hours, after which they delivered the verdict: not guilty. wwEven the prosecution acknowledged they had chosen a tough case. It was just a matter of time before Hyde would have choked on his own saliva.

A spokesperson for Right to Life of Michigan worried about the effects of the decision.

wwThe trial lasted five days. That jury has just unleashed The most emotional moment the floodgates. There is going came when the jury watched to be no stopping him or other a videotape in which Hyde doctors who believe they struggled to make his wishes are God. known in words that could barely be made out: “I want to end this; I want to die.” Many jurors cried as they watched. wwOver the next three years, Michigan would try to convict Kevorkian three more times. wwGeoffrey Fieger, Kevorkian’s After three acquittals and a defense lawyer, argued that the 194

Lecture 20  The Trials of Jack Kevorkian

fourth case that ended in a mistrial, it seemed likely that no Michigan jury would ever convict Kevorkian for participating in a suicide.

wwAfter three years without prosecution, assisted suicide had fallen out of the headlines. Kevorkian was determined to push his crusade further.

Euthanasia wwIn 1996, Thomas Youk’s career as wwAfter hearing a description of a race car driver came to an end the procedure that would end his when he was diagnosed with ALS. life, Youk read a consent form. It By 1998, he had a food tube in his said that he agreed to use “active stomach, his lung capacity was a euthanasia to be administered by small fraction of normal, and he a competent medical professional was all but completely paralyzed. in order to end with certainty my intolerable and hopelessly incurable suffering.” wwYouk asked his family to contact Dr. Kevorkian. They sent him a letter and arranged a visit. wwKevorkian asked how long Youk could wait until the procedure. He agreed he could hold out for wwIn the Youk family living room, another week. “OK,” Kevorkian Kevorkian set up a video camera. said, “let’s not hurry into this.” Kevorkian put Youk’s hand into his own and asked him to describe what ALS had done to him. Then, wwThe next afternoon, Kevorkian Kevorkian asked Youk to attempt received a call from Youk. He a series of movements—for couldn’t wait any longer. He example, “try lifting your left wanted to end his suffering now. hand off of your wheelchair.” Kevorkian headed over to the Youk home with his equipment, including his video camera. 195

Lecture 20  The Trials of Jack Kevorkian

wwKevorkian turned on the camera and started an intravenous line. “Are you sure you want to go ahead now?” Kevorkian asked. Youk nodded. Kevorkian injected Seconal into Youk’s right hand. Because Kevorkian took the action that would cause death, Youk’s death would not be an assisted suicide—it was euthanasia. wwYouk gasped, and his chin fell to his chest. “Are you awake?” Kevorkian asked. No answer. Kevorkian proceeded to inject a lethal dose of potassium chloride. Then, he eyed the electrocardiogram until it showed a straight line. The whole procedure took less than five minutes.

on Kevorkian. In the interview, Wallace asked Kevorkian whether what he did to Youk could be called “murder.” Kevorkian said, “It’s not necessarily murder, but it doesn’t bother me what you call it.” wwKevorkian challenged prosecutors to try him. He promised that if convicted, “I will starve myself to death in prison.” It was time to decide once and for all whether what he was doing was right. wwKevorkian believed that he was taking a stand for liberty. He told Wallace: If you don’t have liberty and selfdetermination, “you have nothing. That’s what this country was built on […]. You try to take a liberty away

from me, and I turn fanatic […]. I’m wwKevorkian wanted to take a fighting for me. Now that sounds stand. He called Mike Wallace selfish. And if it helps everyone else, of the CBS show 60 Minutes and so be it. arranged to have his videotapes of the Youk interview and death sent to the network. wwThree days later, Michigan prosecutors charged Kevorkian with murder and aiding and wwOn November 22, 1998, 60 abetting a suicide. Minutes broadcast the segment 196

Lecture 20  The Trials of Jack Kevorkian

wwGeoffrey Fieger thought the 60 to choose between a murder Minutes videotape was damaging. conviction and a full acquittal. He told Kevorkian he would try to get the tape excluded from wwThe trial judge, Jessica Cooper, evidence. But Kevorkian no longer warned of the consequences of wanted to hide anything. He dismissing the assisted suicide was proud of the tape and didn’t charge. Without that charge care if it helped the prosecution. standing, any evidence about the Fieger told Kevorkian that, as a pain and suffering of Thomas lawyer, he could not allow his Youk would be irrelevant and client’s case to self-destruct. legally inadmissible. With that Then “consider yourself fired,” opinion of the judge on the Kevorkian told him. record, the prosecutor on his own motion dismissed the assisted suicide charge. wwKevorkian’s fanaticism blew away his common sense. He talked to his new lawyers about getting wwThe trial was an utter disaster. convicted and taking the question Kevorkian represented himself. of euthanasia to the US Supreme The only argument he made was Court. He told them he was that euthanasia should be legal— willing to sacrifice his freedom but it wasn’t. The prosecution had for the cause. He even suggested the videotape, on which Kevorkian he might win the Nobel Prize. seemed at least as concerned about himself as he did his patient. wwIn a big legal blunder, his new lawyer made a motion to dismiss Advocates for the disabled the charge of assisted suicide. The worried that a right to assisted lawyer’s theory was that no jury suicide might morph into a would ever convict Kevorkian of movement to terminate lives murder. If assisted suicide was perceived by others to be of low off the table, they would have quality. 197

Lecture 20  The Trials of Jack Kevorkian

wwThe trial lasted just two days. Kevorkian didn’t call a single witness. In his closing argument, he compared himself to Rosa Parks and Martin Luther King—a champion for civil liberties. wwThe jury found Kevorkian guilty of second-degree homicide.

wwKevorkian served his time in a prison in Coldwater, Michigan. In an MSNBC interview aired in 2005, Kevorkian said that if he were freed from prison, he would no longer directly help people die. Instead, he would limit himself to campaigning to have the law changed.

wwJudge Cooper sentenced Kevorkian to serve 10 to 25 years in prison. In pronouncing the sentence, she told Kevorkian:

wwKevorkian was paroled for good behavior in 2007 and died in 2011, at age 83. According to his attorney, there were no artificial attempts to keep him alive, and his death was painless.‡ You had the audacity to go on national television, show the world what you did, and dare the legal system to


stop you. Well, sir, consider yourself

Colby, Long Goodbye.


Nicol and Wylie, Between the Dying and the Dead.

‡ The cause that Dr. Kevorkian fought for lives on. Polls show a nation divided on the

issue, but with a substantial majority supporting a right to physician-assisted suicide. State laws generally prohibit the practice, but there are exceptions. The first was Oregon, where in 1994 voters approved the Death with Dignity Act. 198

Lecture 21

Boy Scouts of America v. Dale


 e Boy Scouts of America had a national policy h since at least 1978 of excluding gays.* But search as you might, there isn’t a word to be found in the universe of Boy Scout literature about gays. The Scout Oath does say that Scouts should be “morally straight,” and the Scout Law says that Scouts should be “clean” in thought. But when the Scouts first booted out gays in 1978, no attempt was made to link the exclusion to those phrases. And there is nothing to suggest that homosexuality was on the mind of the authors of either the Scout Oath or Law. Instead, Scout officials simply declared that Scouting “was a privilege, not a right” and that Scouts had a right to establish their own membership standards.

* In addition to gays, the Boy Scouts also excluded atheists and, at the time, girls.

Some people referred to this as the three Gs membership policy: no girls, godless, or gays. 199

Lecture 21  Boy Scouts of America v. Dale

Gay Rights wwScouting had been a big part of James Dale’s life since he joined the Cub Scouts when he was just eight years old. He excelled as a Boy Scout, earning 30 merit badges. By age 17, he was an Eagle Scout. And when he turned 18, he continued working with the Scouts as an assistant Scoutmaster. wwDale found a home in the Boy Scouts, but he faced an internal struggle in high school. He came to realize that he was gay. But he pretended to be straight, hiding his homosexuality. wwIn his sophomore year at Rutgers University, Dale finally came out as gay. But few in his hometown of Port Monmouth knew this. wwIn July 1990, Dale was invited to speak at a Rutgers conference on the difficulties of living a double life in high school. A reporter for the Newark Star-Ledger—which had the largest subscriber base of any paper in New Jersey— attended the conference.

wwAfter Dale spoke, the reporter asked if she could quote him in her story. At first, Dale requested that his name not be used, but when the reporter pushed back, Dale relented. The story ran under the headline “Seminar Addresses Needs of Homosexual Teens” and included three sentences about Dale and a picture of him talking with two other speakers. wwMany people around Port Monmouth noticed the story. And some took it upon themselves to report their discovery to James Kay, head of the Monmouth Council of the Boy Scouts of America (BSA), which oversaw 27 troops and about 8,000 boys. wwKay reported the news about Dale to the national office in Irving, Texas. The office told Kay that Dale had to go—the policy was clear and contained no exceptions. They sent him a form letter that would declare Dale’s expulsion.


Lecture 21  Boy Scouts of America v. Dale

wwEleven days after the StarLedger story, Dale got the letter. It told him that Scouting was a privilege and that he had failed to meet “the high standards of membership which the BSA seeks to provide for American youth.”

He wrote to the director of the northeast region and requested an opportunity to attend a review hearing on his expulsion. But he never got the chance. He simply got a short letter back a few months later declaring that his termination from the Scouts had been affirmed.

wwDale was stunned and devastated. He felt “very, very betrayed.” But what could he do about it? The wwMeanwhile, Dale had learned letter said he could appeal to the about a law firm in New York BSA’s regional director within 60 City that took on gay rights cases days. But that seemed like a lost called Lambda Legal. When Dale cause. And he was just a college met with attorneys at Lambda, student with few resources and they were not optimistic about could scarcely afford the cost of a their chances of winning his case. legal fight. A 1986 Supreme Court precedent had held that laws criminalizing homosexual conduct did wwDale had never thought of not violate the Constitution. himself as an activist of any kind; Although the vote was five to protesting and filing lawsuits was four, the court had become even not in his nature. But the policy more conservative since the was just so wrong. He decided to decision. talk to a lawyer. wwThe lawyer told him that he should first make his internal appeal to the BSA’s regional director. Any judge was likely to insist that he do that—so he did.

wwBut there are other reasons to bring a lawsuit. Dale was, by all accounts, an upstanding young man. His background and behavior were conservative. In


Lecture 21  Boy Scouts of America v. Dale

many ways, he would challenge the popular stereotype of gay men as flamboyant, risk-taking hedonists. Many people would see Dale’s exclusion from the Boy Scouts as unjust. In other words, bringing Dale’s case might have PR benefits, even if the case were ultimately lost. Lambda took Dale’s case.

York Times under the headline “From an Eagle Scout to Persona Non Grata.” wwBy this time, Dale had graduated from Rutgers. He was one of only 18 students in a class of more than 2,000 to be inducted into the Cap & Skull Senior Honor Society for his outstanding leadership and academic achievement.

wwThe case got a boost when New Jersey became the fifth state in wwBut the BSA dug in against Dale the country to ban discrimination and others who were filing in public accommodations on similar suits around the country. the basis of sexual orientation. If The BSA had, the year before, Dale’s attorneys could convince issued a policy statement called a state court that the BSA was “a “Homosexuality and the BSA” place of public accommodation,”† that said: then Dale’s exclusion would be illegal under state law. We believe that homosexual conduct is inconsistent with the requirements in

wwDale filed his complaint against the BSA in July 1992. Almost immediately, it became a national news story. A photo of Dale appeared in The New

the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for Scouts.

† Public accommodations are generally agreed to include hotels, restaurants,

theaters, stores, and the like—so it was a stretch to interpret the law to cover a private association like the BSA. 202

Lecture 21  Boy Scouts of America v. Dale

wwThe statement ended with the declaration, As a private member organization, we believe our right to determine the qualifications of our members […] is protected by the Constitution of the United States.

wwWhenever the question arose, BSA spokesmen were quick to say, “Homosexuality is inconsistent with the traditional family values that Scouting teaches.” But in fact, Scouting never really had been about teaching family values, traditional or otherwise. Scouting had always prided itself in its inclusiveness. The first Scout patches proclaimed “Scouting for all boys.”


Lecture 21  Boy Scouts of America v. Dale

The Right of Freedom of Association wwDale’s lawyers asked the court to wwDale’s attorneys regarded their award damages for the emotional steepest legal hurdle as showing pain and suffering he experienced that the Scouts did not have, after his termination from the under the First Amendment, a Scouts. They also requested the freedom-of-association§ right to court to order the BSA to reinstate exclude gays. Dale as an assistant Scoutmaster. wwIn their brief, they made several points. First, they pointed out that Dale had a spotless record in Scouting and had never advocated for gay rights or even revealed his sexual orientation. Second, they argued that the BSA was a place of public accommodation: It had a large and mostly unselective membership, advertised for new members, was primarily educational or recreational in nature, and had a close relationship with government entities.‡

Was the organization expressive? Did it take political positions or advocate certain public policies? If not, there was really no First Amendment freedom-ofassociation claim for the Supreme Court to worry about.

wwDale’s trial judge was Patrick McGann, who was 64 and a conservative Catholic—not exactly a great judge from Dale’s standpoint. And his decision proved that to be true.

‡ The brief noted that every president since William Howard Taft had served as the

honorary president of the BSA. § The words freedom of association appear nowhere in the First Amendment—or

anywhere else in the Constitution, for that matter—yet the Supreme Court has held that the First Amendment implicitly protects the right of individuals to form groups for expressive activities. And the right to associate carries with it the right to choose not to associate with individuals who don’t share your expressive purpose. 204

Lecture 21  Boy Scouts of America v. Dale

wwMcGann’s decision reflected his role models they must provide own distaste for homosexuality. for their children.” But, he said, He quoted Genesis for the at least the decision gave them proposition that the “act the opportunity to go to the US of sodomy has always been Supreme Court “and put an end considered a gravely serious moral to these lawsuits.” wrong.” He called it “unthinkable” that the BSA would tolerate such wwThe Supreme Court announced conduct. He called Dale “an active they would hear the BSA’s sodomist.” Then, he ruled that appeal. It takes the votes of at the BSA was not a place of public least four justices to grant cert, accommodation so that New and the obvious reason four Jersey’s antidiscrimination law justices would want to take the didn’t apply. It was not “a place,” case was to overrule the New and it was “not public.” And even Jersey Supreme Court. It seemed if it had been, McGann argued, likely that they wanted to use applying the law to the BSA would the case to extend freedom-ofviolate its rights under the US association protection to the Boy Constitution. Scouts—and other private groups like them. wwMcGann’s homophobic opinion helped build public sympathy wwOf course, four nearly certain for Dale. And the New Jersey votes is not five. But four justices Supreme Court, on appeal, saw rarely vote to grant cert if they the case very differently. All think they will ultimately lose seven justices voted to reverse the case. If swing justice Anthony McGann’s ruling. The BSA’s First Kennedy could be won over, Amendment claim was rejected. the decision was theirs. And no justice on the court voted more frequently to uphold First wwThe attorney for the Scouts Amendment claims than the called it “a sad day when the libertarian-minded Kennedy. state dictates to parents what 205

Lecture 21  Boy Scouts of America v. Dale

wwIn contrast, lawyers at Lambda with like-minded fellows and were disappointed. They had move the world. strongly argued that the court should not take the case. But wwDale’s attorneys relied heavily on their client was thrilled. Ever the the precedent of Roberts v. United optimist, Dale had a hard time States Jaycees.¶ New Jersey, they imagining that the justices would argued, had a compelling interest rule against him when the injustice in preventing discrimination of his dismissal was so plain. against gays—an interest that trumped the BSA’s claim of freedom of association. wwFor its part, the BSA decided to turn the brief-writing reins over to one of the nation’s most wwApril 26, 2000, was argument prominent First Amendment day for Boy Scouts of America v. litigators, Michael McConnel, Dale. At the end of the day, most who was also an assistant courtroom reporters said it was Scoutmaster. McConnell’s brief hard to predict who would win. focused squarely on the freedomBoth sides were hit with hard of-association claim. It contained questions. The court was clearly nothing of the antigay language split. It would probably all come that appeared in previous BSA down to the votes of Kennedy and briefs. The right of association, Sandra Day O’Connor. McConnell wrote, was “almost as inalienable as individual liberty” wwChief Justice William Rehnquist because only with that right can announced the decision for individuals combine their efforts the court. The vote was five ¶ The Jaycees had an all-male membership policy, but in Roberts v. United States

Jaycees in 1984, the court upheld a Minnesota decision that required the Jaycees to allow its Minneapolis and Saint Paul chapters to admit women as regular members. The court concluded that Minnesota had a compelling interest in eliminating discrimination against women, especially when it would allow male-only networking for jobs. 206

Lecture 21  Boy Scouts of America v. Dale

to four in favor of the Scouts. wwJustice John Paul Stevens wrote Rehnquist described the mission for the four liberal dissenters. of the Scouts as “to instill He called the willingness of values in young people.” While the majority to accept the bare instructing “in activities like assertion that Dale’s sexual camping, archery, and fishing, orientation would cause the scoutmasters inculcate them with Scouts harm “astounding.” the Boy Scouts’ values—both Stevens said, “There is no expressly and by example.” There evidence that the young Scouts is no question, he concluded, that in Dale’s troop were even the Scouts engage in expressive aware of his sexual orientation, activity protected by the First either before or after his public Amendment. statements at Rutgers University.” wwThe majority took the BSA at its wwStevens called prejudice against word and accepted its claim that homosexuals “atavistic.” Such homosexuality is “not morally prejudices, he wrote, “have straight” within the meaning of caused serious and tangible harm the Scout Oath. Rehnquist wrote, to countless members of the class “A state requirement that the Boy New Jersey seeks to protect”— Scouts retain Dale as an assistant harm that is “aggravated by the scoutmaster would significantly creation of a constitutional shield burden the organization’s right to for [the Scouts’] policy.” oppose or disfavor homosexual conduct.” As a result, he said, New wwAt the time of the decision, Dale Jersey had to provide a compelling expressed disappointment in the justification for its “severe outcome. He worried that the intrusion on the Boy Scouts’ decision might “teach gay kids to rights to freedom of expressive hate themselves.” But he believed association.” That, he concluded, that the country was headed in the state had failed to do. the right direction.


Lecture 21  Boy Scouts of America v. Dale

In the decade that followed Dale, the BSA lost financial support from corporations and became embroiled in a number of lawsuits as some local and state governments cut off access to schools, other public buildings, and public property. Meanwhile, increasing numbers of Scout leaders and executives concluded that the Scouts “were on the wrong side of history.” In light of this, the BSA announced that no youth would be denied membership in the Scouts because of his sexual orientation—although the ban on gay Scoutmasters would remain in place. The new policy became effective on January 1, 2014. A year and a half later, the ban on gay Scout leaders was also dropped.

READINGS Ellis, Judging the Boy Scouts of America. Wolff and Koppelman, A Right to Discriminate?


Lecture 22

Kelo v. City of New London


 e house was 107 years old and had been on the h market for years. It was surrounded by overgrown brush and had a cracked foundation and peeling paint. But Susette Kelo was interested. Located in the gritty yet historic Fort Trumbull* neighborhood of New London, Connecticut, the house was affordable and had a sweeping view of the Thames River. In 1997, Kelo bought the property for 53,000 dollars, with the seller agreeing to pay for a new paint job. Kelo chose pink.

* George Washington used Fort Trumbull in the Revolutionary War. In 1781, British

troops, led by Benedict Arnold, took the fort and set fire to the city of New London, Connecticut. 209

Lecture 22  Kelo v. City of New London

Kelo’s Little Pink House wwAbout the same time as Kelo site. A large company could bought the house, the governor jump-start development over the of Connecticut, John Rowland, surrounding area. began imagining a big urban renewal project along New wwPfizer, the world’s biggest London’s waterfront. The city was pharmaceutical company, had not doing well. Unemployment a major research center near rates were twice the state average, New London. The NLDC board and crime was rising. convinced Pfizer’s president of research, George Milne, to take the leadership role in landing wwThe Rowland Administration a company for the site. But it found a well-connected lobbyist turned out that Pfizer itself was named Jay Levin to direct the looking for more office space. urban renewal project. Levin found a vehicle for pushing redevelopment forward. It was a wwBy October, Milne was dormant nonprofit corporation envisioning a new Pfizer facility called the New London on land just a short walk from Development Corporation Kelo’s front door. And that would (NLDC). He then found a smart, just be the beginning of the ambitious, and charming woman redevelopment. Pfizer would need named Dr. Claire Gaudiani more like 100 acres, not just the to be the president of the 24 currently available. revived NLDC. wwThe NLDC vision for the Fort Trumbull area began to take wwOnce it was operating, the shape. The corporation would NLDC made it the top priority to acquire more land and transform identify a Fortune 500 company the modest neighborhood around to build a major facility on the


Lecture 22  Kelo v. City of New London

Fort Trumbull into something grand—an upscale area with everything necessary to keep young corporate types happy. To do that, though, the state would have to be on board.

the area around Pfizer’s proposed facility. The plan was to have construction completed by 2000, with 2,000 new jobs ready to be filled. wwPeople at the NLDC began talking with the owners of nearly 100 properties they wanted to buy. When Kelo learned about the NLDC’s plans, she told a neighbor, “Well, I’m not planning on going anywhere. I just got here.”

wwGaudiani and Milne met with Governor Rowland. Pfizer would need some things done before they would commit to locating along the New London waterfront. Fort Trumbull would have to be renovated and transformed into a state park. wwReal estate brokers lined up The nearby junkyard would have by the NLDC began knocking to go. The sewage treatment plant on doors in the Fort Trumbull would have to be modernized. neighborhood. Within a week, Most importantly, Pfizer needed the brokers had contracts for the NLDC to buy an additional 20 options to buy. An NLDC 90 acres of real estate—which progress report indicated that happened to include Kelo’s another 24 properties would little pink house—that could be be under option within a few redeveloped as Pfizer saw fit. weeks. More would follow in the two weeks after that. The report suggested that nine owners wwThe governor was receptive. seemed determined to hold out He promised Pfizer 75 million for prices higher than fair market. dollars in incentives and agreed And 15 homeowners, the report to provide 8 million dollars for said, didn’t want to sell at all. the NLDC to acquire property in


Lecture 22  Kelo v. City of New London

Eminent Domain wwIn the local paper, Kelo read the headline “Pfizer to Expand into New London” along with a quote from someone at the NLDC who said that they would prefer not to use eminent domain to take property from homeowners but that they wouldn’t rule it out. In other words, Kelo’s land could be taken and given to someone else for their own private use.

initial strategy meeting at Kelo’s house and provided the name of a community organizer who might be of help. wwAt their meeting, Kelo, Mayor Beachy, and the activist decided to create a neighborhood association to oppose the use of eminent domain. The group was called the Fort Trumbull Neighborhood Association. Kelo would be its president.

wwIn late February 1998, a real estate broker knocked on Kelo’s front door. The agent offered her wwIn April, brokers working for 68,000 dollars, 15,000 dollars the NLDC sent out letters to more than she had paid for the holdouts. They offered the house the year before. “I’m not city’s appraised values for their interested in selling my property,” property—and threatened them Kelo said. with eminent domain if they didn’t take it. wwA few weeks later, the same agent returned, this time offering wwGovernor Rowland was on hand 78,000 dollars. Kelo warned the when ground was broken on a agent that if she came back again, new 220-million-dollar research she’d “throw her off the porch.” facility. The next month, the NLDC unveiled a new map for the Fort Trumbull neighborhood. wwKelo decided to act. She called Every private home was gone. New London’s mayor, Lloyd In their places were condos and Beachy, who sympathized with a hotel. her position. He suggested an 212

Lecture 22  Kelo v. City of New London

uncertain. They announced a merger with another large pharmaceutical company, Warner-Lambert. The merger suddenly created a surplus of property. Did a new research center in New London still make sense?

wwThe NLDC was eager to begin demolition as soon as possible. The hope was that the noise, bulldozers, and dust would reduce the holdouts’ enthusiasm for living in the neighborhood. wwWhile New London’s mayor was on the side of Kelo and the holdouts, the majority of the city council was not. They debated whether to use the city’s eminent domain power or to delegate the power to the NLDC, which then could use it as it saw fit. The council voted to give NLDC the power to push ahead with its development plan. By doing so, the council could shield themselves from some of the political heat.

wwIn late September, the NLDC brought in bulldozers and the demolition work began—but not without a fight. Mayor Beachy, his wife, and another protester sat in the path of an excavator. It took two police officers to lift the mayor and haul him off to a nearby police car.

The Fifth Amendment of the US Constitution authorizes takings for public purposes, so long as just compensation is paid. But it does not authorize taking for private purposes. Pfizer was the driving force behind the development and the exercise of eminent domain, and Pfizer is a private company.

wwAdvocates for the Fort Trumbull homeowners decided it was time to hire a lawyer. They contacted the Institute for Justice, a public interest firm that took on property rights cases free of charge.

The city and the NLDC saw it differently. They argued that what’s good for Pfizer is good for New London and that that means the taking was for a public use.

wwMeanwhile, Pfizer’s plans for the waterfront became more 213

Lecture 22  Kelo v. City of New London

wwWhen the protesters were called Kelo and offered her removed, the houses started 123,000 dollars. But Kelo hung up. coming down. Kelo watched, tears streaming down her face. By wwA few weeks later, Kelo found the end of the day, all the homes a paper taped to her front on her block were gone. Only her door. It stated that eminent little pink house still stood. domain proceedings had been commenced. It said that a recording of taking would soon be wwAdding insult to injury, the NLDC issued and “title to this premises decided to proceed with using shall vest in the municipality.” its eminent domain powers— delegated by the city—to acquire the properties of the last holdouts. wwSoon, Kelo got a letter from the Kelo’s property was among those NLDC. Now that it owned her specifically identified for seizure. home, the letter said, it would immediately start charging her 450 dollars a month in rent until wwAs a last-ditch effort, a she moved out. representative for the NLDC

Public Use wwThe Institute for Justice filed its hold off on further action until a complaint in the case of Kelo v. trial decision. City of New London, alleging that the taking of the homes of Kelo wwNew London city attorney and her neighbors violated the US Tom Londregan argued that Constitution. The institute filed the comprehensive plan for the a motion for a restraining order Fort Trumbull neighborhood to prevent any further evictions included plenty of public or demolitions. Embarrassed by benefits—new roads, utilities, bad publicity, the NLDC agreed to better infrastructure. Moreover, 214

Lecture 22  Kelo v. City of New London

the plan would generate jobs and tax revenue. Yes, Pfizer was a beneficiary of the plan, but the City of New London would be a winner, too. According to the city’s attorney, the takings met the “public use” requirement of the Fifth Amendment.

the words of one lawyer. Overall, the judge said, the development plan met the requirements for being “a public use.” But the plan failed to specify any particular use for Kelo’s property or for a number of the other plaintiffs. And, the judge said, without a specific use for those properties being identified, the properties could not be taken. For 11 of 15 properties involved in the lawsuit, that meant ownership reverted back to the original owners.

wwThe Kelo case was tried without a jury. Scott Bullock, a property rights lawyer at the Institute for Justice, argued for Kelo that the city delegated its eminent domain power “to private parties for private gain.” Bullock called Fort wwKelo and the other victorious Trumbull residents—including plaintiffs celebrated. But they Kelo—and their relatives to called the decision bittersweet, the stand. because not all the plaintiffs would be able to stay in their homes. wwFor its part, the city tried to show how badly it needed new jobs and tax revenue—and how the plan wwThe question for both the NLDC for Fort Trumbull would provide and the Institute for Justice was that. Without development, New whether to appeal or to take London was doomed. half a loaf. In the end, neither side could trust the other. The NLDC decided to appeal to the wwThe trial judge surprised both Connecticut Supreme Court.† sides by “splitting the baby,” in † While Kelo’s case was pending, the issue of eminent domain use received national

attention. A segment on 60 Minutes in 2003 reported that more than 10,000 properties in 41 states were under threat of being taken for private developers. 215

Lecture 22  Kelo v. City of New London

wwUnfortunately for Bullock and his clients, four members of the Connecticut Supreme Court were not persuaded by their arguments. By a vote of four to three, the court reversed the decision that would have allowed Kelo and others to keep their properties.

justified because it would create jobs, expand the tax base, and help the poor. Justices William Rehnquist, Antonin Scalia, and Clarence Thomas seemed likely to be sympathetic to Kelo’s argument. But what way would Justices Sandra Day O’Connor and Anthony Kennedy go?

wwKelo was devastated. But at least the Connecticut Supreme Court allowed her to stay in her home until the appeal process reached its end.

wwOn February 22, 2005, the Supreme Court heard arguments in Kelo v. City of New London in a packed courtroom. On June 23, Kelo received a call from Bullock, who had just heard from the Supreme Court and reported, “We lost. The decision was five to four. I’m sorry.” Kelo said, “If the city wants my home, they are going to have to drag me out of here.”

wwAs for Bullock and the Institute for Justice, there was now only one place left to go. They appealed the Connecticut decision to the US Supreme Court, which agreed to hear arguments in the Kelo case. wwLike so many high-profile cases, Kelo would hinge on the votes of swing justices. Justices John Paul Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg would probably buy the city’s argument that the taking was

wwJustice Stevens wrote the majority opinion. Stevens wrote that “our cases without exception” have interpreted the meaning of “a public purpose” broadly. The court should give “great respect” to the judgements of state and local governments as to what is or is not a public purpose.


Lecture 22  Kelo v. City of New London

wwFor the four dissenters, Justice O’Connor wrote that the court had abandoned a

wwMeanwhile, the grandiose plans for the Fort Trumbull neighborhood fell apart. Pfizer chose not to build.

long-held, basic limitation on government power. Under the banner of economic development, all private

Kelo brought renewed attention to the “public use” clause of the Fifth Amendment. As a result, many states passed legislation making it difficult or impossible for cities to take private property for private economic development.

property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded in the process.

wwA few months later, Kelo ‡went to Washington and spoke to the Senate Judiciary Committee: This battle against eminent domain


abuse may have started as a way for me to save my little pink cottage, but

Benedict, Little Pink House.

has rightfully grown into something much larger. The fight to restore the

Burnett, The Safeguard of Liberty and Property.

American Dream and the sacredness

Somin, The Grasping Hand.

and security of each one of our homes.

‡ With her friends and neighbors gone, Kelo wasn’t sure she wanted to live in the Fort

Trumbull neighborhood any longer. So she signed a contract with the city, receiving 442,000 dollars for her lot. Her house was taken apart and reassembled board by board on a private lot in New London. A 2008 ceremony celebrated the historic pink cottage’s move to its new location, at the corner of Franklin and Cottage Streets. 217

Lecture 23

The Citizens United Case



Jackson’s campaign for president in the 1820s ushered in the era of mass politicking, and it took off from there. By 1840, William Henry Harrison’s campaign included rallies, parades with banners and floats, pictures of Harrison, and badges—all of which cost money. In 1864, Abraham Lincoln worried about the influence of corporate money in politics, saying, “As a result of the war, corporations have become enthroned, and an era of corruption in high places will follow.” But the cost of campaigns continued to shoot up—and wealthy business owners were eager to help foot the bills.


Lecture 23  The Citizens United Case

James Madison probably lost his race for a seat in the Virginia legislature in 1777 because he refused to provide liquor at his rallies. Why go listen to James when his opponent is offering free rum? George Washington knew better. He won one election after serving roughly a half gallon of alcohol for every vote he earned.

Campaign Finance Laws wwWilliam McKinley’s campaign in 1896 rested on retaining the gold standard, a policy favored by big industries. McKinley’s chief fundraiser told corporate leaders how much they were expected to contribute. Banks were to pay one-quarter of one percent of their capital; other industrial leaders were assessed flat fees. McKinley won. wwIn response to the massive corporate funding of the McKinley campaign, four states enacted laws in 1897 banning all corporate contributions to political campaigns.

wwMcKinley’s successor, Theodore Roosevelt, was the first president to call for an outright ban on corporate contributions. Roosevelt told Congress in 1905: “All contributions by corporations to any political committee or for any political purpose should be forbidden by law.” wwA few years later, Congress managed to pass a toothless law called the Publicity Act. It required disclosure of major donors and limited the size of contributions. But the law lacked any enforcement mechanism.*

* There would not be a single prosecution in the 46 years the Publicity Act remained

on the books. 219

Lecture 23  The Citizens United Case

wwSo campaign spending kept shooting skyward. And increasingly, most of the money came from a relative handful of very wealthy people. wwIt was not until 1971 that Congress passed the first truly significant piece of campaign reform legislation. By then, television had changed politics. Among other things, it made races much more expensive. It also turned fundraising into a nearly full-time job. wwThe Federal Election Campaign Act was signed by President Nixon. It created a general taxpayer-paid fund for presidential elections, limited expenditures for media advertising, tightened reporting requirements, and imposed a ceiling on what candidates for federal office could spend on their own campaigns. wwTwo years later, amendments to the law created the Federal Election Commission (FEC), composed of three Republicans

and three Democrats, each serving six-year terms. The amendments also set limits on individual contributions to campaigns. wwThe Federal Election Campaign Act became law largely for one reason: It favored incumbents. With the powers of their offices and their greater name recognition, they had an edge. With the law in place, they need not worry about millionaire opponents funding their own campaigns—nor about opponents with unique fundraising appeal. wwEven so, the act was challenged in court in January 1975. The challenge was brought by litigants from each end of the political spectrum. They argued that money was speech—at least money spent to further a political campaign. Money spent to buy a lawn mower would be conduct, not speech. But money for a campaign, they argued, is a form of political association protected by the First Amendment.


Lecture 23  The Citizens United Case

wwThe government argued that even if the law restricted speech, it should be upheld. The law served to level the playing field and reduce the likelihood of corruption. wwIn Buckley v. Valeo, the Supreme Court upheld the limit on individual contributions because a contributor’s money does not directly support the contributor’s free expression. It is the candidate, the recipient of the money, whose speech reaches

the public. On the other hand, the law restricting the amount of money a rich candidate could spend on his or her own behalf was struck down. The candidate’s own expression was directly restricted. And besides, the court said, a rich person can’t be corrupted by money that comes from him- or herself. wwBillionaires were free to spend their billions, which was good news for later self-funded candidates like Ross Perot.

Electioneering Communications wwFrom the 1980s on, donors coordinated with the candidate’s increasingly exploited a large own campaign. loophole in the campaign finance laws. The exclusion on limitations wwSoft money became the new of so-called soft money—not (some believed) corrupting hard money, given directly to a influence in American politics. By candidate for his or her campaign, the mid-1990s, the amount of soft but rather money given to a money being spent on elections private entity, a political action almost matched that of the committee (PAC), to spend in campaigns themselves. PACs took its own ways. PACs are required, many forms; there were labor theoretically, to spend their union PACs, interest group PACs, money in ways that are not and corporate PACs. 221

Lecture 23  The Citizens United Case

wwScandals, fundraising abuses, and massive campaign expenditures led to another attempt at campaign finance reform. The result, in 2002, was a law formally known as the Bipartisan Campaign Reform Act, more commonly known by the name of two Senate sponsors, John McCain and Russ Feingold. wwThe McCain-Feingold Act prohibited soft-money contributions made directly to political parties and imposed new limits on individual contributions of both soft and hard money. Perhaps most importantly, the law prohibited corporations and labor organizations from paying for any electioneering communications† within 60 days of a general election or 30 days of a primary election.

wwOn the day of the signing, Senator Mitch McConnell filed a suit challenging the new law’s constitutionality. Meanwhile, he worked to undermine the law by controlling the process of nominations to the FEC. The new Republican appointees essentially refused to enforce the law. The result was a number of three-tothree deadlocks on enforcement actions.

wwPresident Bush signed the legislation. But he did so reluctantly.

Mitch McConnell

† The McCain-Feingold Act defined an electioneering communication as any

broadcast, cable, or satellite communication that referred to an identified candidate for federal office and is “targeted to the relevant electorate.” 222

Lecture 23  The Citizens United Case

wwMcConnell’s behind-the-scenes maneuvering paid off. But his legal challenge to McCainFeingold didn’t fare so well. By a five-to-four vote in 2003, the court upheld nearly the entire law. It was the high-water mark for campaign reform efforts.

wwThe case was heard by a newly remade Supreme Court. Justices John Roberts and Samuel Alito joined the court in President George W. Bush’s second term. The loss of Justice Sandra Day O’Connor, who had voted with the majority in 2003, made all the difference. She had been replaced by Justice Alito.

wwBut the precedent of McConnell v. Federal Election Commission did not last long. The court soon wwCitizens United would hinge on the decided to reconsider the act’s question of whether corporations key requirement, prohibiting have a First Amendment right corporate electioneering to free speech—and whether a communications around election limitation on corporate-funded time. The case was Citizens United electioneering communications v. Federal Election Commission. violates that right. It became one of the most hotly debated cases of our time.

It turns out that the Supreme Court decided long ago that corporations were “persons” entitled to certain constitutional rights. In the 1888 case of Pembina Consolidated Silver Mining Co. v. Pennsylvania, the court said: Under the designation of ‘person’ there is no doubt that a private corporation is included. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name. Over the decades that have followed, the Supreme Court has reaffirmed this holding many times. But this doesn’t mean that corporations necessarily have exactly the same First Amendment rights as individuals. 223

Lecture 23  The Citizens United Case

Citizens United v. Federal Election Commission wwWhen the McCain-Feingold Act was passed, David Bossie was the president of the conservative advocacy organization Citizens United. The organization receives some of its donations from corporations.

general election—thereby running afoul of the McCainFeingold Act. Citizens United was a nonprofit corporation, but the law applied to for-profit and nonprofit corporations alike.

wwTwo years later, Bossie began thinking about making a movie wwIn 2004, Bossie watched Michael about Hillary Clinton. At the Moore’s left-leaning political time, she was considered the documentary Fahrenheit 9/11 and odds-on favorite to win the 2008 decided to produce movies for Democratic nomination for Citizens United that pushed a president. conservative agenda. Bossie’s first ‡ production, Celsius 41.11, was a response to Moore’s film—both wwBossie recruited a list of a tribute to George W. Bush’s war conservative commentators, on terrorism and an attack on the including Ann Coulter, Dick 2004 Democratic candidate for Morris, Robert Novak, Larry president, John Kerry. The movie Kudlow, and Newt Gingrich, had a brief theatrical run in the to appear as interview subjects fall of 2004. in his film, called Hillary: The Movie. Unsurprisingly, none of the commentators had anything good wwBossie had hoped to take out to say about Clinton. television ads promoting his movie. But there was a problem. The ads would run during the 60- wwThe movie cost more than a day period before the November million dollars to produce. But ‡ According to the film’s tagline, Celsius 41.11 is “The Temperature at Which the Brain

Begins to Die.” 224

Lecture 23  The Citizens United Case

Citizens United was worried. It suddenly appeared that the wheels were coming off Clinton’s campaign. She unexpectedly lost the caucuses in Iowa to Barack Obama. If the movie didn’t come out soon and Clinton’s campaign continued to fall apart, who would pay money to see the movie? wwBossie decided to release the movie as soon as possible—well ahead of when he originally intended. He quickly put together television ads promoting the movie’s release.

to the FEC’s insistence that ads for the movie contain an explicit disclaimer. He complained that the disclaimer would turn the spot into a political ad and detract from its effectiveness. wwThe FEC also said that it would be an illegal campaign contribution for Citizens United to pay a cable company to make the movie available on TV as a video on demand. Moreover, if the combined gifts funding the movie exceeded 3,000 dollars, all the donors’ names would have to be disclosed. In the view of the FEC, what Citizens United did was no

wwCitizens United knew full well that the ads would run afoul of restrictions in the McCainFeingold Act. In fact, that was probably the point—part of a strategy to undo McCainFeingold. David Bossie

wwBossie and Citizens United argued they had a First Amendment right to advertise their movie whenever they wanted to, even during a campaign. Bossie also objected 225

Lecture 23  The Citizens United Case

different than if General Motors or Google made a movie favoring a particular candidate. Corporate money financed the movie, and that amounted to a violation of McCain-Feingold.

an evisceration of protections for core political speech. He urged the court to overturn the 2003 McConnell decision and free corporations to make whatever political pitches they chose to make.

wwCitizens United filed suit against the FEC. The case was first wwThe attorney for the FEC, Deputy heard by a panel of three federal Solicitor General Malcolm district court judges. The court Stewart, tried to argue that sided with the FEC. In the court’s the case should be decided on view, the movie was a 90-minute narrow grounds. There was no campaign ad arguing that Senator need to reconsider the large First Clinton is unfit for office and Amendment question about the that viewers should vote against limitations on corporate speech. her. The court held that the FEC But if the court did go there, the correctly applied the McCainlaw should be upheld. Even direct Feingold Act and that the law was regulation of political speech is constitutional. permissible if the government can show a “compelling need” for the regulation. And preventing wwBossie and his legal team corruption was a compelling appealed directly to the Supreme justification. Court. Ted Olson, former US solicitor general, decided to transform the case from a narrow wwBut the majority was skeptical. one challenging a few specific Why should speech from provisions of McCain-Feingold corporations be more corrupting into an all-out assault on the than speech from individuals? law’s constitutionality. He argued Can’t we trust citizens to that McCain-Feingold created a decide the value of speech for slippery slope that could lead to themselves? 226

Lecture 23  The Citizens United Case

wwCitizens United had its five votes. §

wwKennedy said it was well established that “political speech of corporations or other associations should not be treated differently simply because such associations are not ‘natural persons.’” Political speech is no less valuable, Kennedy said, when it “comes from a corporation rather than an individual.” Speech is speech, in Kennedy’s eyes— and it is all equally deserving of protection, whatever its source.¶

wwAnnounced on January 21, 2010, the opinion for the majority was written by Justice Anthony Kennedy. He invalidated McCain-Feingold’s most contested provision, which barred corporations from using their general treasury funds to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Kennedy said that under the law, many forms of political speech became felonies.

wwHaving essentially erased the distinction between the freespeech rights of individuals and those of corporations,

A 2018 study by the University of Maryland’s Public Policy Program showed that three-fourths of Americans supported a constitutional amendment overturning Citizens United. But because constitutional amendments are almost impossible without the broad support of politicians from both parties, Citizens United is likely to remain the law.

§ The Citizens United decision was ironic in one sense: Citizens United’s original

objections to the law were the only part of the law that survived. The court upheld McCain-Feingold’s disclaimer and donor-disclosure requirements. ¶ The court did not address a provision of the law that prohibits electioneering

communications from “foreign nationals.” 227

Lecture 23  The Citizens United Case

Kennedy turned to the specter of censorship. He wrote, “The Government has muffled the voices that best represent the most significant segments of the economy.” And “the electorate [has been] deprived of information, knowledge and opinion vital to its function.”

wwIn the minds of the four dissenters, the strong “societal interest in avoiding corruption and the appearance of corruption” provided more than enough justification for regulating corporate expenditures on candidate elections.**

READINGS Urofsky, Money and Free Speech. Voices of American Law, “Citizens United v. FEC.”

** Spending soared in the first election after Citizens United. Spending in

congressional races jumped 46 percent from the election before. 228

Lecture 24

Liberty for Nonhumans?


 e due process clause of the Fourteenth h Amendment says, “No state shall […] deprive any person of life, liberty, or property without due process of law.” The Fifth Amendment imposes the same restriction on the federal government: Persons are entitled to life and liberty. But what it means to be a “person” is more complicated than one might suppose. The Supreme Court has found that numerous things—things without hearts or brains or breath—might be “persons” with rights under the Constitution, including churches, ships, labor unions, and even corporations. Personhood is a legal concept, not a biological one. Might at least some nonhuman species be “persons” for legal purposes—beings entitled to have their freedom and autonomy respected?


Lecture 24  Liberty for Nonhumans?

The Nonhuman Rights Project wwSteven Wise is the president and founder of the Nonhuman Rights Project, whose purpose is to achieve legal personhood and fundamental legal rights for nonhuman animals.

animals are cognitively complex, have their own cultures, are autonomous and selfdetermining, and have both a theory of mind and a sense of time. It helps, he says, that apes, cetaceans, and elephants also have been researched a lot; there are scientists who can produce detailed affidavits supporting these animals’ impressive cognitive abilities.

wwWise and the Nonhuman Rights Project have focused first on winning legal personhood for apes, cetaceans, and elephants. Wise notes that all of these


Lecture 24  Liberty for Nonhumans?

wwThese species, from a legalwwThe Nonhuman Rights Project strategy standpoint, have two decided to take the fight for other things going for them: Apes, animal liberation into the courts. cetaceans, and elephants are not The project decided that a good native to North America, and they species to start with would be have no large economic value. chimpanzees, who share more Granting apes and elephants or than 98 percent of their DNA with dolphins their liberty would not humans, and that a good place to come at a heavy cost to Americans; start would be New York State, there are no big American where judges might be more open industries lining up to fight to their common-law argument against extending them freedom. than in many other states.

Tommy the Chimpanzee wwDozens of chimps were being kept wwTommy was born in the early as pets or for entertainment in 1980s and was raised from the United States, and several of infancy by Dave Sabo, who used those were in New York. One was to own a business called Sabo’s Tommy, a male chimpanzee living Chimps.* Tommy became the out his old age in a cage on a property of Patrick Lavery in used trailer lot near Gloversville. 2008 after Sabo died. Lavery said The Nonhuman Rights Project Tommy was well cared for. “He described Tommy’s living space likes being by himself,” he told as a “small, dank, cement cage in a reporter. He pointed out that a cavernous dark shed.” Tommy had a color television to watch.

* Sabo once signed Tommy on for a role as an ape called Goliath in the 1987 film

Project X. Bob Barker, the former TV game show host and animal rights activist, claimed that the trainers in the film used clubs to train him. 231

Lecture 24  Liberty for Nonhumans?

wwWise saw things differently. To him, Tommy was “one sadlooking chimpanzee.” He noted that chimps are very social animals. Living alone year after year can’t be an easy thing. wwTommy became the first chimpanzee to have a suit filed on his behalf—the first animal of any kind, actually. The case of Nonhuman Rights Project, Inc., on Behalf of Tommy v. Patrick C. Lavery was filed in Fulton County court in December 2013. The filing asked the court to grant a writ of habeas corpus† that would have the effect of freeing Tommy from his cement cage.

wwWise wanted Tommy’s destination to be perhaps the best sanctuary for chimpanzees in the United States: the Save the Chimps sanctuary in Fort Pierce, Florida. About two dozen chimps live together on each of 13 threeto five-acre islands situated in a large artificial lake in the warm sun—a place where these autonomous beings could choose who they wanted to be with and what they wanted to do.

The action on behalf of the chimp Tommy was unlike any action ever brought in US courts. There have, of course, been many suits brought to protect animals from abusive owners and inhumane treatment—called animal welfare cases. And there are animal welfare laws. But this was different. Wise called it “a civil rights case,” not an animal welfare case.

wwUnlike what would be the usual case for a human being, the Nonhuman Rights Project was not asking simply that the door of Tommy’s cage be opened to let him wander where he might—nor did the project seek to return Tommy to Africa, as captive chimps released into the wild die.

† Habeas corpus means, literally, “you shall have free the body.” 232

Lecture 24  Liberty for Nonhumans?

The sanctuary’s first chimps included the surviving heroes of the NASA space program and others who had been the subjects of years of painful experimentation.

wwNew York law states that a petition for habeas corpus can be filed by any “person illegally imprisoned or otherwise restrained in his liberty.” Any “person” may seek the writ. And that would be the key legal question: Was Tommy a “person” within the meaning of the law? The position of Wise and the Nonhuman Rights Project was that Tommy was not property— was not “a thing”—but as an autonomous being, he should

have rights of his own. In other words, he should be a “person.” wwWise compared chimps to fiveyear-olds. Chimps and young children both exhibit a range of emotions, can understand other minds, and have problem-solving abilities. Given a chance, they can master an impressive vocabulary in sign language. Researchers have even seen chimps teaching other chimps sign language and then watched as those chimps use 233

Lecture 24  Liberty for Nonhumans?

sign language to communicate among themselves. And just as five-year-olds held in unlawful custody would not be in a position to sue for themselves, chimps need humans to bring an action to enforce their legal rights. wwThe legal filing on behalf of Tommy included affidavits from scientific experts around the world, who were unanimous in their belief that chimpanzees shared with humans all the essential abilities and feelings— including autonomy—that made them deserving of rights of their own. wwIn the day or two before arguments in Tommy’s case, Wise made rounds on national television. He explained in an interview on Good Morning America that a habeas corpus action is appropriate when a person is unjustly held. If Tommy were a human held in a concrete cage without his consent, the

case would be a no-brainer. The challenge, Wise said, was getting judges to extend the definition of persons to include chimpanzees. wwActually, a dramatic extension of personhood had been proposed four decades earlier—by Supreme Court Justice William O. Douglas in the 1972 case Sierra Club v. Morton. Douglas, in dissent, noted that inanimate objects like ships and corporations are sometimes considered persons for purposes in litigation. He wrote, “So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air.” He argued that people who have a meaningful relationship to a river, for example, should be able to sue on its behalf. wwPerhaps Justice Douglas was just a few generations ahead of himself. In 2017, a New Zealand court recognized a river as a person for legal purposes.


Lecture 24  Liberty for Nonhumans?

Tommy’s Legal Journey wwTommy’s journey through the courts began with a hearing in Fulton County court. The judge was sympathetic but thought the matter should go to a higher court.

responsibilities to chimps? What would that even mean?

wwWise tried to point out that infants and children, the comatose, and those stricken with severe Alzheimer’s, for example, lack the ability to bear legal wwThe Nonhuman Rights Project’s responsibilities—yet they are appeal was heard by a panel of persons with legal rights. But the five judges in a packed courtroom judges were unconvinced. in Albany. Judges asked Wise if it wouldn’t be a better approach to lobby the legislature for wwIn its opinion denying laws that extend additional personhood to Tommy, the court protection for chimps held in wrote, “Unlike human beings, bad conditions. They asked him chimpanzees can’t bear any whether any court—anywhere— legal duties, submit to societal had ever extended personhood responsibilities, or be held legally to a nonhuman living being. (Of accountable for their actions.” course, the answer was no. But you have to start somewhere.) wwWise and others at the Nonhuman Rights Project were disappointed but were wwThe judges pressed Wise about determined to press ahead. what they saw as an important In late 2015, they filed a new difference between humans and habeas corpus action on behalf chimps. We give legal rights to of Hercules and Leo, two humans, the judges said, but chimpanzees who were being we also impose on them legal held by Stony Brook University on responsibilities—that’s the social Long Island. The filings included contract. Could we give legal


Lecture 24  Liberty for Nonhumans?

60 more pages of affidavits from experts, including Jane Goodall.

in a cage in a residential area of Niagara Falls.

wwFor the first time in history, a wwThe Nonhuman Rights Project judge issued a habeas corpus contended that Kiko’s owners’ order that required Stony Brook “hearts were in the right place.” to come into court and legally The owners “emotionally justify their right to detain the bonded” with Kiko; they wanted chimps. The deciding justice, to get Kiko to “a better place” but Barbara Jaffe, clearly sympathized lacked the money to do it. Losing with Hercules and Leo and said Kiko—to them—would be like that in her view, chimps might losing a child. But the Nonhuman someday be “persons,” but that Rights Project had photos that she was bound by legal precedent showed Kiko with a steel chain and therefore required to dismiss and padlock around his neck that the case “for now.” the owners used as a leash. wwThe Nonhuman Rights Project then filed a second suit on behalf of Tommy before Justice Jaffe, who said that a legal do-over was not possible in the absence of any new ground. wwThe Nonhuman Rights Project again appealed—both for Tommy and for Kiko,‡ a male chimp held

wwTommy and Kiko’s appeal was heard in Manhattan. Wise attacked the reasoning in the previous decision by the court in Albany. He said that if personhood only extended to people with the capacity to bear legal duties, then “millions of humans in New York would also lose the ability to go into

‡ Kiko was partially deaf, apparently from abuse suffered during the shooting of

the made-for-TV movie Tarzan in Manhattan. Kiko bit an actor and was punished by having two trainers hold him while a third struck him on the head with a blunt instrument. 236

Lecture 24  Liberty for Nonhumans?

court.” Wise was referring to wwHe continued: infants, children, incapacitated individuals, and elderly To treat a chimpanzee as if he or people who cannot fulfill this she had no right to liberty protected requirement. He called the earlier by habeas corpus is to regard the chimpanzee as entirely lacking decision “unfair, and not backed independent worth, as a mere resource up by science.” for human use, a thing the value of which consists exclusively in its wwThe appellate court rejected usefulness to others. Wise’s arguments. According to the court, the issue had been decided once already, and the wwJudge Fahey concluded: second petition was out of line. Wise vowed to seek permission to The issue whether a nonhuman animal appeal from New York’s highest has a fundamental right to liberty court—but to no avail. The New protected by the writ of habeas corpus is York Court of Appeals denied profound and far-reaching. It speaks to the motion seeking permission our relationship with all the life around to appeal. us. Ultimately, we will not be able to ignore it. While it may be arguable that

wwBut one judge on the court was not happy about it. Judge Eugene M. Fahey issued an opinion in which he said that the court’s failure to take up the issue “amounts to a refusal to confront a manifest injustice.”

a chimpanzee is not a “person,” there is no doubt that it is not merely a thing.

wwThis issue isn’t going away.§ Many people suspect that animal rights will be the big civil rights issue of the rest of the 21st century.

§ In 2018, Wise was back in New York courts, this time on behalf of an elephant

named Happy who resided for decades in the Bronx Zoo. Happy was the first elephant to pass the self-recognition test, meaning that she knew she was looking at herself in a mirror. Happy’s fate is still undecided. 237

Lecture 24  Liberty for Nonhumans?

If we begin to recognize legal rights for some species, say chimps and elephants, some will ask where the line should be drawn. What about pets and stock animals?

READINGS Andrews, Comstock, Crozier, Donaldson, Fenton, John, Johnson, et al., Chimpanzee Rights. Hegedus and Pennebaker, Unlocking the Cage. Wise, Rattling the Cage.



Quiz 1

Which of the following best describes developments resulting from the 1637 conviction of Anne Hutchinson? a Authorities in the Massachusetts Bay Colony soon realized the wrongfulness of Anne’s conviction, and laws were changed in the colony to allow freer expression of religious opinions. b The conviction divided the colony, and a period of intense political battling began. c While the Massachusetts Bay Colony remained intolerant of religious differences, the conviction of Hutchinson was a spur to legal protection for religious speech and exercise in the Rhode Island and Providence Plantations. d The conviction of Hutchinson led to the revocation of the Massachusetts Bay charter.


The printer John Peter Zenger was put on trial in 1735 for what alleged crime? a the crime of treason, for giving aid and comfort to enemies of the colony’s governor b the crime of libel, for falsely accusing the colony’s governor of accepting a bribe c the crime of libel, for scandalizing and vilifying the colony’s governor d the crime of denying the governor’s legitimate claim to his office




What happened when a group of Boston abolitionists launched an assault at the courthouse where the fugitive slave Anthony Burns was being held? a A deputy was killed, and many of the abolitionists were arrested. b The group succeeded in temporarily freeing Burns, but he was soon recaptured. c Burns was rescued and taken by horseback to an abolitionist farm in western Massachusetts. d The abolitionists were met with a heavy show of force and retreated.


When the slave girl Cecilia was put on trial for murdering her Missouri master in the course of trying to fend off another of the master’s repeated rapes, what was the outcome? a Celia was acquitted because the jury was convinced she acted in self-defense. b The jury sympathized with Celia’s plight but felt compelled to convict her on the lesser charge of manslaughter. c Celia’s claim of self-defense was rejected, and she was sentenced to 10 years in prison. d Celia was convicted and executed.




Which of the following were probable consequences of the trial of John Brown for leading an assault on the federal arsenal at Harper’s Ferry? a The trial served to further polarize Northern and Southern opinions on slavery. b The trial altered politics in a way that made the election of Abraham Lincoln as president more likely. c The trial likely moved forward in history the date for the outbreak of the Civil War. d All of the above are likely consequences of the trial.


What did Susan B. Anthony do during the several months between her arrest for illegal voting and her trial? a She began a long lecture tour in the county, speaking about the injustice of denying the vote to women. b She traveled to Washington to lobby for a constitutional amendment that would guarantee women the right to vote. c She traveled around New England, raising funds for her legal defense. d She spent more than two months in the Monroe County jail.




Emma Goldman, “Big Bill” Haywood, and Mary Harris Jones (“Mother Jones”) were all important progressive activists or figures in the American labor movement. What do they have in common? a All were put on trial in Chicago in connection with a bombing at Haymarket Square. b All credited the Haymarket trials as inspiring their lives of political activism. c All participated in the efforts to gain pardons for the convicted Haymarket defendants. d All were born in 1886, the year of the Haymarket trial.


As closing arguments ended in Detroit’s Sweet trial, the trial judge in the case, Frank Murphy (who would later serve as a US Supreme Court justice), said this about the lawyer whose argument he had just heard: “This is the greatest experience of my life […]. I will never hear anything like it again. He is the most Christ-like man I have ever known.” Of whom was Murphy speaking? a Louis Brandeis b Clarence Darrow c Samuel Leibowitz d Gerry Spence




The US Supreme Court, by a vote of six to three, upheld the conviction of Fred Korematsu for violating an order excluding Japanese Americans from large designated “military areas” along the West Coast. Who were the three dissenting justices? a William O. Douglas, Hugo Black, and Robert Jackson b William O. Douglas, Frank Murphy, and Wiley Rutledge c Owen Roberts, Robert Jackson, and Frank Murphy d Harlan Stone, Wiley Rutledge, and Frank Murphy


What happened after the Supreme Court’s rejection of the claim by the Gobitis family that the school district’s mandatory flag-salute policy violated the First Amendment? a In many places around the country, Jehovah’s Witnesses became seen as unpatriotic and were the victims of assaults. b President Roosevelt, in a fireside chat, rebuked the Supreme Court for its decision and called the Jehovah’s Witnesses “patriots.” c Newspaper editorials across the country condemned the court’s decision, and, in a rare move, the Supreme Court granted reconsideration of the Gobitis case. d Jehovah’s Witnesses began a nationwide hunger strike to call attention to what they said was a manifest injustice.




Why did Clarence Darrow ask the jury in the Scopes trial to return a guilty verdict? a Darrow decided to teach Scopes, who had been critical of Darrow’s defense efforts, a lesson. b Darrow decided that the long-term prospect for academic freedom would be best advanced by making Scopes a martyr for the cause. c Darrow wanted to take constitutional issues to the appellate courts, which would not be possible in the case of an acquittal. d No historian has yet come up with a good explanation for the strange move.


At the time Charles Hamilton Houston began his legal assault on segregation in public schools, how many states had schools that were segregated by law? a 5 b 9 c 11 d 19




In the obscenity trial of Lenny Bruce for his performance at the Café Au Go Go in New York City, which of the following elements, or alleged elements, of Bruce’s routine did the prosecutor cite as evidence of guilt? a “cumulatively nauseating word pictures” b “four-letter words and more acrid 10- and 12-letter hyphenated ones” c “a masturbatory gesture” involving the microphone d All of the above were cited.


In the case of Roe v. Wade, the Supreme Court concluded what about a woman’s right to terminate her pregnancy? a The court said that the right to an abortion extends to just before the time of childbirth. b The court said that the right to an abortion extends through the second trimester, though some regulation of abortion procedures was possible in the second trimester. c The court said that the right to an abortion extends through the first trimester. d The court said that the right to an abortion extends up to the time in a pregnancy when the fetus becomes viable outside the womb, with local hospital officials given the discretion to make the determination as to when that time is.




How did the trial judge in Wisconsin rule following a trial of three Amish fathers charged with withdrawing their children from public schools in violation of compulsory education laws? a The judge said that the compulsory law was a reasonable exercise of governmental power and did not violate the Constitution. b The judge found that no central religious teaching of the Amish would be violated by the attendance of the defendants’ children at a public school. c The judge said that the Amish children should be exempted from physical education classes because of the immodest dress required in those classes but must otherwise meet the curriculum requirements. d The judge found that enforcing the compulsory education law against the Amish fathers amounted to a violation of their rights under the free exercise clause of the Constitution.


James Dale was expelled from the Boy Scouts of America after the assistant Scoutmaster was found to have done what? a told the Scouts in his troop that there was nothing morally wrong with being gay b approached a 17-year-old Scout and asked him for a date c gave a speech that was critical of the Boy Scouts’ policy of excluding gays as members d as a college student, participated in a conference that addressed the psychological pressures of being gay




Daniel Ellsberg faced trial on charges of copying top secret records (the Pentagon Papers) and then giving copies to The Washington Post and The New York Times. What was the outcome of the trial? a All charges were dismissed after it was discovered that the Nixon Administration had arranged a break-in at the office of Ellsberg’s psychiatrist. b All charges were dismissed after it was discovered that the Nixon Administration had approved a wiretap of conversations between Ellsberg and his defense attorney. c Ellsberg was acquitted after a jury concluded that copying the Pentagon Papers and making them public was in the best interest of the public. d Ellsberg was convicted of violating espionage laws, but his conviction was overturned by the Supreme Court.


The City of New London, through a development agency, exercised its power to take the home of Susette Kelo for what apparent purpose? a to expand an existing state park, Fort Trumbull State Park b for an improved highway to provide access to a new research facility for Pfizer c to reserve for possible use by a private project that was not publicly revealed d to become part of a private development project that included condos and a hotel




What happened to Richard and Mildred Loving following their nighttime arrest in 1958 for violating Virginia’s miscegenation laws? a They were booked and released on their own recognizance. b They were booked and told they were free to go if they agreed to immediately leave the state. c They were booked and put into the county jail. d They were booked and then immediately freed on bail with the help of a lawyer from a local ACLU chapter.


After being acquitted in several trials where he assisted in suicides, Dr. Jack Kevorkian was finally convicted of second-degree murder in connection with the death of Thomas Youk. What accounts for the different result in the Youk case? a Sentiment had turned heavily against assisted suicides in the years between Youk and the previous trials. b Kevorkian chose to represent himself in the Youk case and didn’t give the jury the option of convicting on a lesser charge. c Unlike any of the previous assisted suicides, Kevorkian had failed to videotape his patient agreeing to the procedure. d State law had recently been changed to eliminate the crime of assisted suicide—and with it, the possibility that Kevorkian could argue that he was aiming at preventing pain.




What seems to be the primary reason Randy and Vicki Weaver chose to leave Iowa and establish a home on Ruby Ridge in Idaho? a to follow the Biblical injunction to “flee to the mountains” and prepare for the “end time” b to settle among like-minded white supremacists who called themselves the Aryan Nation c to join an antigovernment group there called Posse Comitatus d to build a survivalist shelter in the place they calculated to be safest in the event of a nuclear attack


In the case of Furman v. Georgia, the Supreme Court effectively struck down all existing state death penalty statutes on what ground? a The death penalty was found to be consistent with “evolving standards of decency.” b The death penalty laws at the time were being applied in seemingly arbitrary and discriminatory ways. c The death penalty statutes of the time allowed prosecutors to strike any potential juror who expressed moral qualms about the death penalty. d The death penalty was found to be disproportionately applied to African American defendants in violation of the equal protection clause.




What is the best explanation for the decision of the Supreme Court to overrule just 17 years later an earlier decision upholding state laws that criminalized sodomy? a The second case was brought by more sympathetic defendants, a married couple having sex in their own bedroom. b In the intervening years, the court had greatly expanded the right of privacy in a series of decisions, and the earlier sodomy case was by the time of the second case a clear outlier. c Acceptance of gay rights had increased considerably in the intervening years, and the court’s largely changed membership was more open to the idea of protecting gays from discrimination. d The statute in the second case criminalized only same-sex sodomy, unlike the first case, which involved a statute that criminalized all sodomy, so the court was able to strike down the statute using the equal protection clause.


What is probably the most consequential fact about the Supreme Court’s decision in Citizens United v. Federal Elections Commission? a The court opened the door to corporations who wished to spend money to influence election outcomes. b The court for the first time in history found corporations to be “persons” within the meaning of the Constitution. c The court for the first time found money to be a form of speech within the meaning of the First Amendment, thus eliminating all restrictions on spending on behalf of either candidates or political issues. d The court held that all campaign disclosure regulations violate the First Amendment, opening the door to dark money, which can be used to influence election outcomes. 250



What was the legal argument that the Nonhuman Rights Project made on behalf of the captive chimpanzees named Tommy and Kiko? a Chimps and humans are sufficiently similar in genetics and capacities that they should be treated alike for all legal purposes. b The chimps were “persons” for constitutional purposes and thus had a right to be free from “cruel and unusual punishment.” c The chimps were being held in conditions that constituted a violation of New York’s animal cruelty laws. d The chimps were “persons” within the meaning of New York’s habeas corpus laws and thus entitled to writs of habeas corpus that would result in their being freed from their current confinement and sent to a chimp sanctuary.

ANSWER KEY 1 c  2 c  3 a  4 d  5 d  6 a  7 b  8 b  9 c  10 a  11 c  12 d  13 d  14 b  15 a  16 d  17 a  18 d  19 c  20 b  21 a  22 b  23 c  24 a  25 d 251


Bibliography Andrews, Kristin, Gary Comstock, G. K. D. Crozier, Sue Donaldson, Andrew Fenton, Tyler M. John, L. Syd M. Johnson, et al. Chimpanzee Rights: The Philosophers’ Brief. Routledge/Taylor & Francis, 2019. Bannai, Lorraine K. Enduring Conviction: Fred Korematsu and His Quest for Justice. University of Washington Press, 2015. Bedau, Hugo Adam, ed. The Death Penalty in America: Current Controversies. Oxford University Press, 1997. Benedict, Jeff. Little Pink House: A True Story of Defiance and Courage. Grand Central Publishing, 2009. Boyle, Kevin. Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age. Henry Holt and Company, 2004. Bruce, Lenny. How to Talk Dirty and Influence People. Simon & Schuster, 1963. Burke, Diane Mutti. On Slavery’s Border: Missouri’s Small Slaveholding Households, 1815–1865. University of Georgia Press, 2010. Burnett, Guy F. The Safeguard of Liberty and Property: The Supreme Court, Kelo v. New London, and the Takings Clause. Lexington Books, 2016. Carpenter, Dale. Flagrant Conduct: The Story of Lawrence v. Texas. W. W. Norton, 2012.



Colby, William H. Long Goodbye: The Death of Nancy Cruzan. Hay House Inc., 2002. Collins, Ronald K. L., and David M. Skover. The Trials of Lenny Bruce: The Rise and Fall of an American Icon. Sourcebooks Inc., 2002. Daniels, Roger. The Japanese American Cases: The Rule of Law in Time of War. University of Kansas Press, 2013. Darrow, Clarence. “You Can’t Live There!” In Attorney for the Damned: Clarence Darrow in the Courtroom, edited by Arthur Weinberg, 229–266. University of Chicago Press, 1989. Dewalt, Mark. Amish Education in the United States and Canada. R & L Education, 2006. Ellis, Richard J. Judging the Boy Scouts of America: Gay Rights, Freedom of Association, and the Dale Case. Kansas University Press, 2014. Ellsberg, Daniel. Secrets: A Memoir of Viet Nam and the Pentagon Papers. Penguin Books, 2002. Finkelman, Paul, ed. A Brief Narrative of the Case and Trial of John Peter Zenger: With Related Documents. repr. ed. Bedford/St. Martin’s, 2010. Garbus, Marin. Tough Talk: How I Fought for Writers, Comics, Bigots, and the American Way. Times Books, 1998. Ginger, Ray. Six Days or Forever? Tennessee vs. John Thomas Scopes. Beacon Press, 1959. Gordon, Ann D., ed. The Selected Papers of Elizabeth Cady Stanton and Susan B. Anthony. vol. 2. Rutgers University Press, 1997. 253


Green, James. Death in the Haymarket: The Story of Chicago, the First Labor Movement and the Bombing That Divided Gilded Age America. Pantheon Books, 2006. Greenberg, Jack. Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution. BasicBooks, 1994. Haldeman-Julius, Marcet. “Clarence Darrow’s Defense of a Negro.” In Clarence Darrow’s Two Great Trials, edited by E. Haldeman-Julius, 45–74. Haldeman-Julius Publications, 1927. Hall, David D., ed. The Antinomian Controversy, 1636–1638: A Documentary History. Duke University Press, 1990. Hegedus, Chris, and Da Pennebaker. Unlocking the Cage. First Run Features, 2016. DVD, 91 min. Herring, George C., ed. The Pentagon Papers. abr. ed. McGraw-Hill, 1993. Klaman, Michael J. Brown v. Board of Education and the Civil Rights Movement. Oxford University Press, 2007. Kluger, Richard. Indelible Ink: The Trials of John Peter Zenger and the Birth of America’s Free Press. W.W. Norton, 2017. LaPlante, Eve. American Jezebel: The Uncommon Life of Anne Hutchinson, the Woman Who Defied the Puritans. HarperOne, 2004. Larson, Edward J. Summer for the Gods: The Scopes Trial and America’s Continuing Debate over Science and Religion. BasicBooks, 1997. Levy, Leonard W., ed. Freedom of the Press from Zenger to Jefferson. BobbsMerrill, 1966. 254


Maillard, Kevin Noble, ed. Loving v. Virginia in a Post-Racial World: Rethinking Race, Sex, and Marriage. Cambridge University Press, 2012. Maltz, Earl M. Fugitive Slave on Trial: The Anthony Burns Case and Abolitionist Outrage. University of Kansas Press, 2010. McCorvey, Norma. I Am Roe: My Life, Roe v. Wade, and Freedom of Choice. HarperCollins Publishers, 1989. McLaurin, Melton A. Celia, a Slave. Avon Books, 1991. McNeil, Genna Rae. Groundwork: Charles Hamilton Houston and the Struggle for Civil Rights. University of Pennsylvania Press, 1983. Mencken, H. L. A Religious Orgy in Tennessee: A Reporter’s Account of the Scopes Monkey Trial. Melville House, 2007. Messer-Kruse, T. The Trial of the Haymarket Anarchists: Terrorism and Justice in the Gilded Age. Palgrave MacMillan, 2011. Nicol, Neal, and Harry Wylie. Between the Dying and the Dead: Dr. Jack Kevorkian’s Life and the Battle to Legalize Euthanasia. Terrace Books, 2006. Oshinsky, David M. Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America. University of Kansas Press, 2010. Patterson, James T. Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy. Oxford University Press, 2001. Peters, Shawn Francis. Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution. University of Kansas Press, 2000.



———. The Yoder Case: Religious Freedom, Education, and Parental Rights. University of Kansas Press, 2003. Peterson, Gregory L. “Recollections of West Virginia State Board of Education v. Barnette.” St. John’s Law Review 81 (Fall 2007): 755–796. Prados, John, and Margaret Pratt Porter, eds. Inside the Pentagon Papers. University of Kansas Press, 2004. Reynolds, David S. John Brown, Abolitionist: The Man Who Killed Slavery, Sparked the Civil War, and Seeded Civil Rights. Alfred A. Knopf, 2005. Richards, David A. J. The Sodomy Cases: Bowers v. Hardwick and Lawrence v. Texas. University of Kansas Press, 2009. Rudenstine, David. The Day the Presses Stopped: A History of the Pentagon Papers Case. University of California Press, 1996. Salter, Kenneth W. The Pentagon Papers Trial. Justa Publications, 1975. Scopes, John T, and James Presley. Center of the Storm: Memoirs of John T. Scopes. Rinehart and Winston, 1967. Somin, Ilya. The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. University of Chicago Press, 2016. Spence, Gerry. The Making of a Country Lawyer. St. Martin’s Press, 1996. Trodd, Zoe, and John Stauffer, eds. Meteor of War: The John Brown Story. Brandywine Press, 2004. Urofsky, Melvin I. Money and Free Speech: Campaign Finance Reform and the Courts. University of Kansas Press, 2005. 256


Voices of American Law. “Citizens United v. FEC.” Duke Law School, 2010. DVD. Wallenstein, Peter. Race, Sex, and the Freedom to Marry: Loving v. Virginia. University of Kansas Press, 2014. Walter, Jess. Every Knee Shall Bow: The Truth & Tragedy of Ruby Ridge & the Randy Weaver Family. Harper Collins, 1995. ———. Ruby Ridge: The Truth and Tragedy of the Randy Weaver Family. Harper Perennial, 2002. Ward, Geoffrey C., and Ken Burns. Not for Ourselves Alone: The Story of Elizabeth Cady Stanton and Susan B. Anthony. Alfred A. Knopf, 1999. Wawrose, Susan C. Griswold v. Connecticut: Contraception and the Right of Privacy. Franklin Watts, 1996. Williams, Selma R. Divine Rebel: The Life of Anne Marbury Hutchinson. Holt, Rinehart and Winston, 1981. Winthrop, John. Short Story of the Rise, Reign, and Ruin of the Antinomians, Familists, and Libertines That Infected the Churches of New England. Kessinger Legacy Reprints, 1644. Wise, Steven M. Rattling the Cage: Toward Legal Rights for Animals. Perseus Books, 2014. Wolff, Tobias Barrington, and Andrew Koppelman. A Right to Discriminate? How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association. Yale University Press, 2009.


Image Credits

Image Credits 4: duncan1890/Getty Images; 14: Rutherford, Livingston "John Peter Zenger; his press, his trial, and a bibliography of Zenger imprints...also a reprint of the first edition of the trial" (1904)/MSN/Robarts - University of Toronto/Internet Archive; 17: Rutherford, Livingston "John Peter Zenger; his press, his trial, and a bibliography of Zenger imprints...also a reprint of the first edition of the trial" (1904)/MSN/Robarts - University of Toronto/Internet Archive; 25: LC-DIG-pga-04268; 29: barbara_dj/; 35: LC-USZ62-89569; 40: LC-USZ62-115350; 45: LC-DIGggbain-30124; 46: LC-DIG-ggbain-12783; 68: LC-DIG-ggbain-38216; 85: LC-DIG-fsa-8d27701; 97: LC-DIG-ppmsca-38735; 101: LCUSZ62-127109; 106: LC-DIG-ppmsca-09709; 116: LC-USZ62-118200; 126: National Archives and Records Administration; 132: Ted Eytan/flickr/ CC BY-SA 2.0; 155: LC-DIG-ppmsca-12429; 163: M.E. Grenander Special Collections and Archives, University at Albany; 191: Kingkongphoto/ Wikimedia Commons/CC BY-SA 2.0; 203: Steven Depolo/flickr/CC BY 2.0; 222: United States Congress/Wikimedia Commons/Public Domain; 225: Gage Skidmore/flickr/CC BY-SA 2.0; 230: benedek/Getty Images; 233: National Aeronautics and Space Administration/Wikimedia Commons/Public Domain; 238: Vladimir Zapletin/Getty Images