Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion (12 page)
Authors: Edward J. Larson
BOOK: Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion
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Events drove the Red Scare. An unprecedented number of strikes paralyzed large sectors of American business during 1919 as an epidemic of labor unrest swept the country following the war. A general strike in Seattle and a police strike in Boston threatened public safety. Race riots broke out in several cities—including Knoxville, just down the road from the future site of the Scopes trial. Terrorist bombings rocked the home of U.S. Attorney General A. Mitchell Palmer and mail bombs were sent to dozens of other political and business leaders. Newly formed domestic Communist parties defended violent revolution abroad and labor militancy at home, the two seeming to blur in the minds of many frightened Americans. “The circumstances of our participation in the World War and the rise of Bolshevism convinced many for the first time that at last society and the Republic were actually threatened,” Robinson observed.
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The government reacted swiftly. Most states outlawed the possession or display of either the red flag of communism or the black flag of anarchism. They also enacted and strictly enforced tough new “criminal syndicalism” laws against organized violent or unlawful activities designed to disrupt commercial or governmental activities. In the bureau’s home state, the legislature formed a special panel known as the Lusk Committee to combat revolutionary radicalism. This committee’s massive report relied partially on confiscated bureau files to expose, as the report described them, “various forces now at work in the United States, and particularly within the state of New York, which are seeking to undermine and destroy, not only the government under which we live, but also the very structure of American society.”
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The Lusk Committee swept with a broad broom. Its report condemned socialism, communism, anarchism, bolshevism, pacifism, the international labor movement, and, of course, the bureau, which was called “a supporter of all subversive groups.”
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Its chief counsel arrested hundreds of New Yorkers associated with these movements.
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The Lusk Committee swept with a broad broom. Its report condemned socialism, communism, anarchism, bolshevism, pacifism, the international labor movement, and, of course, the bureau, which was called “a supporter of all subversive groups.”
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Its chief counsel arrested hundreds of New Yorkers associated with these movements.
The Wilson administration in Washington supplemented such state actions with a series of coordinated police raids that ransacked the homes and offices of alleged radicals across the country and led to the arrest and prolonged detention of thousands of suspects, often without valid warrants or court orders. Late in 1919, the Justice Department deported to the Soviet Union a shipload of denaturalized Communists. Radical labor leaders bore the brunt of these assaults. Yet the liberal Democratic administration of Woodrow Wilson did not go far enough for many Americans. Republicans recaptured the White House in 1920 with a presidential candidate who promised a “return to normalcy” and a vice presidential candidate who had broken the Boston police strike and championed the cause of immigration restriction. Civil liberties remained in jeopardy.
“Well, of course, it was a time of tremendous labor unrest, highlighted by the two general strikes in the steel mills and coal mines. And it was also, and I guess above all, a time of intense radical agitation, brought on by the Russian Revolution,” Roger Baldwin later recalled. “So by the time the World War was over we had a new war on our hands—a different one. Then, instead of arresting and persecuting opponents of the war, we were arresting and persecuting friends of Russia.”
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Thus events stood when Baldwin left prison and reassumed leadership of the National Civil Liberties Bureau. He promptly concluded, as he stated in a memorandum to the executive committee, that the bureau should be “reorganized and enlarged to cope more adequately with the invasions of civil liberties incident to the industrial struggle which had followed the war.” Direct action to protect labor unions would replace legal maneuvers on behalf of pacifists as the bureau’s principal focus. The bureau assumed a new name to go with its new mission: the American Civil Liberties Union. “The cause we now serve is labor,” Baldwin proclaimed at the time, and labor included public school teachers.
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Thus events stood when Baldwin left prison and reassumed leadership of the National Civil Liberties Bureau. He promptly concluded, as he stated in a memorandum to the executive committee, that the bureau should be “reorganized and enlarged to cope more adequately with the invasions of civil liberties incident to the industrial struggle which had followed the war.” Direct action to protect labor unions would replace legal maneuvers on behalf of pacifists as the bureau’s principal focus. The bureau assumed a new name to go with its new mission: the American Civil Liberties Union. “The cause we now serve is labor,” Baldwin proclaimed at the time, and labor included public school teachers.
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The new cause and methods adopted by the ACLU set the stage for how it would handle the Scopes trial. It remained an elitist organization dominated by liberal, educated New Yorkers who had grown wary of majoritarianism. Instinctively they opposed popular movements to restrict academic freedom, such as the antievolution crusade, but failure to achieve judicial redress for their grievances, especially on behalf of labor unions, led them increasingly to resort to direct action tactics designed to enlighten public opinion. Litigation in and of itself did not hold much promise for protecting minority rights.
The bureau enjoyed some success in providing legal counsel to conscientious objectors during the war, but it failed to make any headway in court toward protecting freedom of expression for antiwar protestors. The ACLU fared no better in its initial courtroom efforts to defend labor organizers following the war. In fact, at the time of the Scopes trial in 1925, the ACLU was still looking for its first court victory. From a legal standpoint, the problem was twofold: states and municipalities imposed many of the objectionable restrictions on speech and assembly, particularly against labor unions, but First Amendment guarantees for freedom of speech, press, assembly, and religion only applied to restrictions by the
federal
government. The Fourteenth Amendment, however, forbade states from depriving “any person of life, liberty, or property, without due process of law.” Supreme Court justice John M. Harlan had long maintained that the “liberty” protected against state action by the Fourteenth Amendment incorporated the basic freedoms enumerated in the First Amendment and other provisions within the Bill of Rights. The full Court did not begin to adopt this position until 1925. That year, in the ACLU-handled appeal of New York Communist leader Benjamin Gitlow’s conviction under state law, it selectively incorporated the First Amendment freedoms of speech and press into, as the Court wrote, “the fundamental personal freedoms and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.”
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This decision occurred too late and in a too-limited fashion to bolster the ACLU’s legal case against the Tennessee antievolution statute in the Scopes trial. Indeed, this potentially momentous development in constitutional jurisprudence did not even help Gitlow, who still lost the case.
federal
government. The Fourteenth Amendment, however, forbade states from depriving “any person of life, liberty, or property, without due process of law.” Supreme Court justice John M. Harlan had long maintained that the “liberty” protected against state action by the Fourteenth Amendment incorporated the basic freedoms enumerated in the First Amendment and other provisions within the Bill of Rights. The full Court did not begin to adopt this position until 1925. That year, in the ACLU-handled appeal of New York Communist leader Benjamin Gitlow’s conviction under state law, it selectively incorporated the First Amendment freedoms of speech and press into, as the Court wrote, “the fundamental personal freedoms and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.”
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This decision occurred too late and in a too-limited fashion to bolster the ACLU’s legal case against the Tennessee antievolution statute in the Scopes trial. Indeed, this potentially momentous development in constitutional jurisprudence did not even help Gitlow, who still lost the case.
Gitlow’s defeat highlighted the second legal barrier obstructing the ACLU’s efforts to secure free speech rights for antiwar protesters and labor organizers. Federal courts gave little meaning to the First Amendment. The first constitutional challenge to the federal Espionage Act reached the U.S. Supreme Court in 1919, when a unanimous bench upheld the conviction of the Socialist leader Charles T. Schenck for encouraging draft-age men to resist conscription. On the extent of constitutional protection for political speech, the great progressive jurist Oliver Wendell Holmes wrote for the Court, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evil that Congress has a right to prevent.” Congress had a right to protect recruitment and conscription of troops during wartime, the aged Civil War veteran reasoned, and because Schenck’s words had a “tendency” to frustrate that effort, the government could stop them.
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This sort of reasoning offered scant protection to speech because—as Holmes acknowledged in a letter to New York federal judge Learned Hand, who had close ties to the ACLU—free speech “stands no differently than freedom from vaccination,” a freedom that the majority could freely override for the general good.
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Hand and the ACLU vehemently argued that free speech merited special protection from the majority owing to its unique role in a democracy. Holmes came around to this position in another 1919 Espionage Act decision, Abrams v. United States, in which he proposed supplementing his “clear and present danger” test with the qualification, “It is only the present danger of
immediate
evil ... that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.” According to Holmes’s revised view, the “free trade of ideas” in a democracy required protection for political speech unless “an immediate check is required to save the country.”
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Holmes now wrote in dissent, however. A majority of the Court clung to the old view of the First Amendment.
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Hand and the ACLU vehemently argued that free speech merited special protection from the majority owing to its unique role in a democracy. Holmes came around to this position in another 1919 Espionage Act decision, Abrams v. United States, in which he proposed supplementing his “clear and present danger” test with the qualification, “It is only the present danger of
immediate
evil ... that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.” According to Holmes’s revised view, the “free trade of ideas” in a democracy required protection for political speech unless “an immediate check is required to save the country.”
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Holmes now wrote in dissent, however. A majority of the Court clung to the old view of the First Amendment.
The prevailing judicial interpretation of the First and Fourteenth Amendments offered little prospect that the ACLU could protect free speech through the courts; therefore it adopted other means. “By demonstrations, publicity, pamphlets, legal aid, bail, test cases in courts, financial appeals—by all these methods of daily service the friends of progress to a new social order make common cause,” the ACLU’s first annual report declared. “The chief activity necessary is publicity in one form or other, for ours is a work of propaganda—getting facts across from our point-of-view.”
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The ACLU ended up fighting many of its battles in court solely because that was where the government took those whom the ACLU sought to defend. The first instinct of the ACLU’s founders was to join labor organizers on the picket lines and at mass meetings. Before reassuming leadership of the ACLU, for example, Baldwin spent three months as a laborer in a series of different working-class jobs as a means to study labor conditions firsthand.
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The ACLU ended up fighting many of its battles in court solely because that was where the government took those whom the ACLU sought to defend. The first instinct of the ACLU’s founders was to join labor organizers on the picket lines and at mass meetings. Before reassuming leadership of the ACLU, for example, Baldwin spent three months as a laborer in a series of different working-class jobs as a means to study labor conditions firsthand.
The legal community played a surprisingly small role in founding the ACLU. Only three attorneys served on the organization’s initial executive committee, and all three supported direct action (rather than litigation) in the fight for civil liberties. During the early 1920s, ACLU representatives spoke at union meetings, organized labor demonstrations, investigated efforts to break strikes, published reports on the plight of workers, and sought legislation to limit antilabor court injunctions and end wartime restrictions on free speech. Baldwin, who was not a lawyer, went so far as to maintain that courts would never guarantee civil liberties because rights “are not granted” by those in power.
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Political radicals and civil rights leaders generally shared this perspective; no public interest law firms existed at the time, and the other early civil rights groups—the NAACP, the Anti-Defamation League, and the American Jewish Congress—mostly relied on publicity and organization to advance their causes. This view of civil liberties litigation—that at most it could publicize an injustice—would shape the ACLU’s legal strategy in the Scopes trial.
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Political radicals and civil rights leaders generally shared this perspective; no public interest law firms existed at the time, and the other early civil rights groups—the NAACP, the Anti-Defamation League, and the American Jewish Congress—mostly relied on publicity and organization to advance their causes. This view of civil liberties litigation—that at most it could publicize an injustice—would shape the ACLU’s legal strategy in the Scopes trial.
The most influential lawyer on the ACLU executive committee at the time of the Scopes trial, Arthur Garfield Hays, personified the direct action approach to the fight for civil liberties. A left-wing Park Avenue attorney named by his Republican father after a string of conservative presidents, Hays grew rich and bored representing major corporations and famous entertainers. ACLU activities served as his major diversion for three decades. As Hays wrote in his autobiography, these activities “brought me in contact with a variety of circles, usually poor, defenseless, and unpopular, always the dissenter and persecuted.” Championing their right to be heard, Hays advocated an absolutist position on free speech that opposed all government restrictions on “the expression of opinion of any kind, at any time, by anyone or anywhere.”
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This became his mission. “To-day you can talk on any subject you please,” Hays wrote in the twenties, “except on a subject which, as a burning issue, would most profit by untrammeled discussion. Speech and assembly are free in New Jersey, West Virginia and Pennsylvania, except to union men in time of strike. If you talk labor unionism then, you land in jail. I know it because I’ve tried it and I landed in jail.”
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This became his mission. “To-day you can talk on any subject you please,” Hays wrote in the twenties, “except on a subject which, as a burning issue, would most profit by untrammeled discussion. Speech and assembly are free in New Jersey, West Virginia and Pennsylvania, except to union men in time of strike. If you talk labor unionism then, you land in jail. I know it because I’ve tried it and I landed in jail.”
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Hays’s personal commitment to direct action on behalf of free speech made him a key actor in many of the ACLU’s legendary exploits during the twenties and thirties. He peddled banned books with the writer H. L. Mencken on the Boston Commons in public defiance of a censorship law. Despite a threat that “they’ll tar and feather you and castrate you,” he confronted mine owners in a strike-bound West Virginia coal town following the murder of three union officials. He defied a ban on public meetings by the strike-busting mayor of Jersey City by delivering an impassioned plea for free speech from atop a car. These experiences made Hays deeply distrustful of majoritarianism and contemptuous of the courts. “We should bear in mind the fact that there may be no greater oppression than by rule of majority,” Hays observed at the time. “Tyranny no less exists when imposed by part of a written constitution.”
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In one extreme example of politicized litigation and an act of personal courage for someone of Jewish ancestry, he once ventured into Nazi Germany to defend radicals accused of burning the Reichstag. “Hays was cynical about the legal process and saw court proceedings as a platform for broad and philosophical statements, an opportunity to educate both the judge and the public,” Walker observed. “He was simultaneously idealistic about the Bill of Rights and cynical about the courts.”
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Significantly, Hays served as chief ACLU counsel at the Scopes trial.
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In one extreme example of politicized litigation and an act of personal courage for someone of Jewish ancestry, he once ventured into Nazi Germany to defend radicals accused of burning the Reichstag. “Hays was cynical about the legal process and saw court proceedings as a platform for broad and philosophical statements, an opportunity to educate both the judge and the public,” Walker observed. “He was simultaneously idealistic about the Bill of Rights and cynical about the courts.”
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Significantly, Hays served as chief ACLU counsel at the Scopes trial.
The ACLU helped set the stage for a show trial in Dayton not only with confrontational methods of promoting free speech but also by its commitment to defend the rights of organized labor. This tie to labor kept the ACLU in close contact with the nation’s premier legal defender of radical labor leaders, Clarence Darrow. “I owe the Union more than variety and excitement, more than tang and the ‘salt’ of life,” Hays later recalled. “There began my association with Clarence Darrow. Nothing in life do I treasure more than that, nothing has been more inspiring or humanly helpful than his company, his example, and his friendship.”
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