Prof. Linder-----I remembered, after sending u the
e-mail
answers to
your ? the article that I wrote for a local weekly
detailing Feiner ( I
wrote a weekly piece for the paper) Here it is:
The Feiner Points: True confessions of a liberal?
progressive? radical?
If you don't
mind I
want
to share this story with you.
About six weeks ago a Constitutional Law
Professor at the
University
of Maine Law School phoned and invited me to speak at
the Law School.
The
Professor enlisted the aid of my daughter who is a
Professor of
Economics
and Women Studies .
The genesis
of that
invitation
goes back fifty years to 1949 when I was a student
attending Syracuse
University
with the help of the G.I Bill--paid tuition, books and
$75 a month. In
addition to being a student, I was involved
in politics,
specifically
the emerging struggle for Civil Rights. While engaged in
that struggle
I delivered a street corner speech that got me arrested,
tried,
convicted,
expelled from the University and sentenced to
thirty days jail
time..
To punctuate my travail, two Law Schools at which I was
accepted
withdrew
their acceptance. I appealed all the way up to the U.S.
Supreme Court
which
upheld the conviction in a 6 to 3 decision. This case,
Feiner v. New
York
is studied in most Constitutional Law courses as a
seminal First
Amendment,
free speech case.
So fifty
years later I found
myself in a moot court room at Main University facing
over 200 law
students
as exhibit A, to talk about a case that occurred some 25
years before
they
were born. As I looked at those youthful faces it became
plainly clear
that my audience and I were separated by a deep
cognitive chasm. We
were
products of "two different worlds". In terms of culture,
mind set and
even
politics, 1949 had more in common with the latter part
of the nineteen
century then it had with the contemporary times of those
students. If I
was to make sense I would have to connect those students
to the
societal
environment of 1949. What follows is a short version of
my lecture.
Since it was a
Constitutional Law course
I read from an essay of Justice Thurgood Marshall : "The
men who
gathered
in Philadelphia in 1787 could not have envisioned these
changes. They
could
not have imagined, nor would they have accepted, that
the document they
were drafting would one day be construed by a Supreme
Court to which
had
been appointed a woman and the descendent of an African
slave. 'WE the
People' no longer enslave, but the credit does not
belong to the
Framers.
It belongs to those who refused to acquiesce in the
outdated notion of
'liberty', 'justice',and 'equality' and who strived to
better
them".
Justice
Marshall's paragraph
was prompted by the profound contradiction between the
words of the
Founders,
"We hold these truths to be self evident that all men
are created
equal-------"
. But after that Declaration Of Independence the
Founders turned that
ringing
assertion of Freedom into a lie,writing in the
Constitution that people
of color are only 3/5 of a person. Historians call that
a compromise.
How
would you like your humanity so compromised.? I stressed
to the
students,
to understand the Feiner case they had to include Feiner
among
the"non-acquiesers".
Having
established the
philosophical
foundation of the bridge to 1949, I cited those
circumstances that had
a profound influence on the shaping of my thinking.
These were
three
primary cicumstances: I am a child of the great
depression: the failure
of the American economic system, the rise of Nazism in
Europe, its
implications
to me as a Jew, and the peculiar American system
of Jim Crow, the
American equivalent of Apartheid.
My education was a typical New York City public
school
education.
Our history texts were the common story; Columbus' sail
to find a short
route to the spice rich Orient but instead discovered
America and
nothing
more. Not even a hint of what Professor David Stannard
defines as the
"American
Holocaust". Nothing of the lives of three million
African
slaves.The
wealth their labor created took up about two or three
bucolic
paragraphs,
nothing more than a Stephen Fosterish rendition of "way
down upon the
Swanee".
However there
was another
important part of my education. It was the street corner
meeting-an
American
art form. These were public meetings where young and old
men ( hardly
ever
women ) would mount a platform and expound on politics,
history and
culture.
This was a time before "punditry" dominated public
discourse. This was
before Brokaw, Jennings, Rather, King, Rivera, Limbaugh
and the
assorted
others. It was at these street corner meetings and
exchanges that I was
introduced to the writings of Lincoln Steffens, the
great muckrakers,
to
Theodore Dreiser, Hemingway, Steinbeck, Richard Wright,
Ellison and
others.
It was their writings and the daily interaction with my
contemporaries
that shaped my understanding of life, politics and
society.
On December 8,1941, the Monday after Sunday, December 7,
High School
principal Mr. Lutz pushed a huge radio in to the
auditorium so the
students
of Theodore Roosevelt High School could hear President
Roosevelt
speech.
It was the Declaration of War on Japan. There was
absolute stillness.
Never
before did I witness my class mates so silent. When the
President spoke
the words, " a state of War exists between the United
States and
Imperial
Japan",I distinctly recall war whoops from the
congressional chamber
but
in that high school auditorium there was a deep
reflective silence; we
knew we were about to be soldiers and sailors. Despite
our congenital
eternal
sense of youthful immortality, some of us began to
question that
immortality.
In March of 1943 I entered the
Army and was
sent to Camp Stewart, Geogia for my basic training in
anti-aircraft.
While
I read of the Jim Crow racist system of the southern
states you had to
see with your own eyes the dehumanizing character of
that practice in
the
segragated camp and in the city of Savannah . The depth
of that
dehumanizing
system penetrated deep into my consciousness on my trip
back to camp
after
my first furlough.
In June of
1943, after a
ten day furlough I started my trip back to camp. At Penn
station I ran
into Lt.Dan Quinlan, an officer in my outfit and despite
difference in
rank, I was a private, Dan and I were good friends. We
boarded the
train
( 1943 was before the emergence of air travel ) and
headed for
Washington,
D.C. where we would transfer to the Southern Coast Line
for Savannah.
At
Union Station the place where Abraham Lincoln's funeral
procession
began,
gave witness to the depth of our Nations shame. Here in
the capitol of
the alliance for freedom that just proclaimed in
the Atlantic
Charter
our commitment to the Four Freedoms we saw the denial of
that
freedom
by the prominent signs that read "for colored only"..
The ride to
Savannah
was
uncomfortable. This was before air conditioning. The
train was fueled
by
coal. To stay cool, windows were opened -. Hot embers
would fly into
the
train. Dan and I were hungry so we went to the dinning
car. As we
entered
that car the first table to our right was enclosed by
two green velvet
curtains. Where the curtains met,through a little crack
we could see
the
people at that table. It was a Black family,three
children and parents.
In those days it was the custom when traveling that
people dressed up;
casual dress was not yet in vogue. There they were,
locked up behind
that
race curtain, no circulation of air, bombarded by hot
embers. I told
Dan
that I was going to tear the curtain away. Dan convinced
me it would do
no good since there were Military Police on board and we
could not
prevail.
After we got
back to camp
our outfit was disbanded, Dan was assigned to the
Infantry and I to
Field
Artillery. I ran into Dan about two years later in an
evil place a
couple
of months at the end of the war in Europe. The
place was Dachau,
the concentration camp outside of Munich. Dan, now a
Major, and I
embraced
and went to lunch. After exchanging information about
comrades from our
old outfit Dan asked me if I remembered that incident on
the train. How
could I forget. Dan then said to me the words that I
remember to this
day,
"Irv the inhumanity that makes possible what we saw on
that train can
make
possible the conduct that was responsible for what
happened in this
place.
In both places the perpetrators declared that some
people are
'untermenshen'
less than human. Once you get to that point people are
capable of any
kind
of brutality." It was for me an epiphany.
When I
returned home I
decided
to take advantage of the GI Bill and enrolled at
Syracuse
University---as
I said, it was a great deal, free tuition, free books
and $75 a month.
Let me digress. The GI Bill was, every one now agrees a
great
government
program. It gave opportunity to millions. It laid the
foundation for
the
great expansion of our national human capitol. These ex
GI's became the
college professors, teachers, scientist, entrepreneurs
that made
possible
our great economic achievements. All of this was done
despite a
national
debt that was greater than our national product--for
every dollar we
produced
we owed $1.40. Nevertheless we invested in people.
Today's
congressional
leaders with their limited imagination, their behavior
dominated by
what
they call a deficit, don't understand the necessity to
invest in
human capital today .
At Syracuse I
studied and
was active in politics. A contingent of ex GIs and
others formed a
group
called The Young Progressives of America. Our main focus
was the
struggle
for Civil Rights. In Syracuse a city with a sizeable
minority
population,
there were no black police, no school teachers and on
the main street
which
was still the business center no black sales clerks. On
the campus
there
was hardly any minority students and no minority
faculty. We campaigned
to change all that. Our goal was to make our community
truly
democratic.
In 1949 our
main area of
activity was around a case called the Trenton Six. In
Trenton, New
Jersey,
in 1948, there occurred a holdup and murder of a
storekeeper. Six black
men were arrested, tried, convicted and sentenced to the
electric
chair.
Part Two
Recall last
weeks
segment
ended with: "In 1949 our main area of activity was
around a case called
the Trenton Six. In Trenton, New Jersey there occurred a
holdup and
murder
of a storekeeper. Six black men were arrested, tried,
convicted and
sentenced
to the electric chair". This case became known as The
Scottsboro case
of
the North. Just think,six men sentenced to the electric
chair and
nothing
of this appeared in the mainstream press. Nothing at all
except for a
few
oblique references on the back pages of the daily
newspaper. Nothing on
the radio-this was before TV. If you don't believe me
then do a little
research on your own. Go to the local library and
reference the New
York
Times of 1948.
Why was the sure death of six human beings so unworthy
for the news
media. One observer attributes the silence to , "the
notion that
the
that the United States would somehow suffer a defeat in
the cold war
with
the Soviet Union if New Jersey were to fail to convict
any person
defended
by the Civil Rights Congress". This case involved race,
America's
incubus,
and the media was perfectly willing to be subservient to
the wishes of
Washington. How could we convince the emerging third
world of our
devotion
to equality when six black men were to be executed?.
Fortunately a
committee
made up largely of clergymen and Princeton University
professors came
to
the rescue. They secured lawyers and forced a reopening
of the case.
The
mainstream press remained silent but now the African
American press and
the left wing press raised this as a case crying out for
justice.
I will tell you the outcome but
for now I
will get back to the part I and the YPA played. We
determined that this
case should be brought to the attention of the people of
Syracuse. On
other
campuses, in many parts of the country, students were
equally
determined
to do the same.
We scheduled a public meeting to be addressed by
one of the
attorneys, O .John Rogge, a former US Attorney to be
held at a local
school
for which the requisite permit was secured. At the last
moment the
permit
was revoked.
Understand 1949 was the dawning of the McCarthy
era and across
our land there was a fear of "reds"and those Americans
who dared expose
the denial of rights to people of color. The opposition
to our meeting
came from the established veterans organizations. They
exerted pressure
on the Mayor and he succumbed, revoked the permit and
then flew off to
enjoy the Mardi Gras at New Orleans. I mention this
piece of minutia
because
it plays a part in the speech I was about to make.
We countered
the crass
denial
of free speech by renting the ballroom of the Hotel
Syracuse. To
announce
the change of venue we took to the streets with our loud
speaking
equipment
mounted on an automobile and began to traverse the city.
Ultimately we
stopped at Harrison and McBride, Syracuse's public
meeting corner. I
mounted
the platform and began speaking. Shortly afterward two
police cars
arrived.
I was informing the crowd about the change of location
and was critical
of the revocation of the permit. I drew a parallel with
the
circumstance
in Trenton and the deprivation of civil rights in
Syracuse.
The police
were parked in
front of a store which was a front for a "horse room"
which compelled
me
to point out that the police pound time to monitor a
political speech
while
they did nothing about the operation of the "horse
room'. In case
you don't know, a horse room, in those days, was a
gambling joint that
functioned in the rear of tobacco shop. I excoriated the
city
administration
as a corrupt administration. The police listened and
after a time
approached
me and ordered that I stop speaking. My friends demanded
to know why,
as
I listened to the exchange. We defended our right to
speak: the police,
we insisted had no right to prevent the speech.. We lost
the argument
and
I was arrested. I was brought to the station house,
locked up, and a
short
time later I was released on $50 bail.
The headlines in the local and campus paper the next day
was all about
the speech and the arrest. I appeared that morning with
my attorney and
the Judge increased the bail from $50 to $1000, which in
1999 dollars
was
equivalent to $15,000. My attorney protested the high
bail for a
disorderly
conduct case. The judge rep[lied that "this was a very
serious case".
But
when the trial came "this very serious case" became for
the same judge
a "minor case" when I asked for a jury it was
denied.
This case dominated the local news in
town and on
campus. It is difficult to explain today how a "simple
disorderly
case"
became such significant news. To understand you have to
understand the
climate in the country. First this case was about race
and the local
power
structure felt that any talk about race was incitement.
I think, also
that
for most people my arrest stood in sharp contrast to the
fundamental
American
right of free speech.
Let me tell you about the
trial. But before
I do, I know many of you will ask how can my memory be
so precise since
all this happened 50 years ago. . About fifteen
years ago a young
man who worked for me during the summer showed me a text
book entitled
Civil Liberties and The Constitution. That book, used in
one of his
classes
featured the Feiner case and took up nineteen pages. The
authors
thought
the case was an important first amendment case and went
to the trouble
of finding the actual trial record. What I now write is
based on that
trial
record..
Specifically the police accused me of disturbing
the peace.
They cited the case of one spectator who
declared," get that son
of a bitch off or I will". They said I used the
following offensive
language:
"Mayor Costello is a champagne sipping bum---". "The
15th ward is run
by
corrupt politicians, and there are horse rooms operating
there."
"President
Truman is a bum." "Mayor O'Dwyer is a bum." "The
American Legion is a
Nazi
Gestapo." "The Negroes don't have equal rights:;they
should rise up in
arms and fight for their rights."
I have to tell you that when I read
some 35 years
later the language the police accused me of I felt a
deep anger. Look,
I was 24 years old and my command of the English
language was
extensive
and not limited to the single denigrating adjective:
bum. My put down
pejoratives
were quite extensive.
I admit to calling
the mayor a
"champagne sipping bum", I like the alliteration. If I
didn't call
Mayor
O'Dwyer a bum I should have. I was critical of President
Truman but did
not call him a "bum" as witness so testified. As for
"rising up in arms
and fighting for rights" the police turned "lets go arm
in arm and
march
down to the Hotel Syracuse". The inspiration for that
phrase came from
my experience in Paris when I marched in the first
post war
Bastille
day parade. That is the way post war Parisians marched,
"arm in arm".
Again
witnesses testified.
As for the
spectator who
wanted to "get that SOB" the prosecution never produced
him at trial.
The
only prosecution witnesses were the two arresting
officers. My witness
were students and folks from the community all of whom
contradicted the
police. Additionally seven members of the University
faculty appeared
as
character witness but in each case the judge would not
allow their
testimony
and when my attorney strenuously objected and
cited case law the
judge persisted. Describing this part of the trial the
authors
write,"Such
was the nature of the trial. There was little doubt to
the outcome."
I have got to
insert that given
the nature of the fear in academia those days these
seven Professors
were
indeed courageous.
After a two trial I was found guilty.
I was escorted
back to the local jail to spend the weekend and await a
"probationary"
report before sentencing on Monday morning.
At
sentencing with
all of the local press present, the judge proceeded to
lecture me on
"good
citizenship". Here is part of that lecture:
'The importance of
Freedom of
Speech for which our founding fathers fought and
died is a very
important
right. Freedom of speech is a right which must not be
abused in Public
any more than in private.......When these liberties are
abused they
endanger
our national security. Then this freedom must be
controlled.'
And that wouldn't
you agree, is
the same language of those aged authoritarians in
Beijing when
they
unleashed the tanks on those heroic young men and women
in Tianemen
Square.
That is and was the belief of every despot,
authoritarian since time
immemorial.
Freedom and control, unlike horse and carriage don't go
together.
At the conclusion of the "lecture" I
was sentenced
to thirty days jail time. So it was off to Jamesville
Penitentiary to
spend
the night. The next day I was "sprung" pending an
appeal. As I was
cuffed
I was presented with a telegram .The telegram "advised"
me that I was
"separated"
from the University.
It took two years for the Feiner case to wind its way
through the
appeal
system. First the decision was affirmed in the County
Court, then the
Court
of Appeals of New York and finally to the Supreme Court
where the
decision
was affirmed again in a six to three decision. I share
with you a
paragraph
from the dissent of Justice Hugo Black, "....a young
college student
has
been sentenced to the penitentiary for the unpopular
views he expressed
on issues interest while lawfully making a street corner
speech in
Syracuse,
N.Y...........Criticism of public officials will be too
dangerous for
all
but the most courageous".
So it was off to the "big House" where I
spent the
remaining
27 days of my sentence. For any of you who remember that
period or have
read of it, you might enjoy knowing how I spent my time.
Get this, I
was
part of a work crew that built a 3 foot deep by 3 feet
wide ditch that
ran from the "big house" to a corner tower some 200 feet
away. Its
purpose:
to drop a telephone line from the tower to the "house"
so that a
warning
could be given in case of an air raid. That was an
appropriate metaphor
for so much of the mental state of our country in 1951.
Concluding my talk
I am invariably
asked, "have we made progress in civil rights?". My
response: We no
longer
have signs that say for "colored only", nor do we have
velvet curtains
that separate people of color on trains. Indeed lots has
changed for
the
better but there remains a profoundly troubling vestige
still in our
American
life. It is our failure to pass the Dostoyevsky test.
The Russian
writer
said that if you want to know the "goodness" of a
country then you have
to look at its prisons.
The prisons of France inspired Victor
Hugo to write
Les Miserables and the Gulags told us so much of the
Soviet Union. Our
prisons tell us something too. Our prison population of
1.8 million the
highest in the industrial world. In a nation of 275
million well over
60%
of the prisoners are black. The African- American
population is 12%.
This
sad data tells us that the civil rights struggle that
began over 300
years
ago is far from over.
About the
Trenton Six.
Finally
we were successful in forcing a second trial resulting
in acquittal for
four. Of the remaining two, one died in jail and the
other was
eventually
exonerated and freed.
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