|Prof. Linder-----I remembered, after sending u the e-mail
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?
If you don't mind I
to share this story with you.
About six weeks ago a Constitutional Law Professor at the
of Maine Law School phoned and invited me to speak at the Law School.
Professor enlisted the aid of my daughter who is a Professor of
and Women Studies .
The genesis of that
goes back fifty years to 1949 when I was a student attending Syracuse
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,
the emerging struggle for Civil Rights. While engaged in that struggle
I delivered a street corner speech that got me arrested, tried,
expelled from the University and sentenced to thirty days jail
To punctuate my travail, two Law Schools at which I was accepted
their acceptance. I appealed all the way up to the U.S. Supreme Court
upheld the conviction in a 6 to 3 decision. This case, Feiner v. New
is studied in most Constitutional Law courses as a seminal First
free speech case.
So fifty years later I found
myself in a moot court room at Main University facing over 200 law
as exhibit A, to talk about a case that occurred some 25 years before
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
products of "two different worlds". In terms of culture, mind set and
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
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
in Philadelphia in 1787 could not have envisioned these changes. They
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
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
It belongs to those who refused to acquiesce in the outdated notion of
'liberty', 'justice',and 'equality' and who strived to better
Justice Marshall's paragraph
was prompted by the profound contradiction between the words of the
"We hold these truths to be self evident that all men are created
. But after that Declaration Of Independence the Founders turned that
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.
would you like your humanity so compromised.? I stressed to the
to understand the Feiner case they had to include Feiner among
Having established the
foundation of the bridge to 1949, I cited those circumstances that had
a profound influence on the shaping of my thinking. These were
primary cicumstances: I am a child of the great depression: the failure
of the American economic system, the rise of Nazism in Europe, its
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
Our history texts were the common story; Columbus' sail to find a short
route to the spice rich Orient but instead discovered America and
more. Not even a hint of what Professor David Stannard defines as the
Holocaust". Nothing of the lives of three million African
wealth their labor created took up about two or three bucolic
nothing more than a Stephen Fosterish rendition of "way down upon the
However there was another
important part of my education. It was the street corner meeting-an
art form. These were public meetings where young and old men ( hardly
women ) would mount a platform and expound on politics, history and
This was a time before "punditry" dominated public discourse. This was
before Brokaw, Jennings, Rather, King, Rivera, Limbaugh and the
others. It was at these street corner meetings and exchanges that I was
introduced to the writings of Lincoln Steffens, the great muckrakers,
Theodore Dreiser, Hemingway, Steinbeck, Richard Wright, Ellison and
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
of Theodore Roosevelt High School could hear President Roosevelt
It was the Declaration of War on Japan. There was absolute stillness.
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
Japan",I distinctly recall war whoops from the congressional chamber
in that high school auditorium there was a deep reflective silence; we
knew we were about to be soldiers and sailors. Despite our congenital
sense of youthful immortality, some of us began to question that
In March of 1943 I entered the Army and was
sent to Camp Stewart, Geogia for my basic training in anti-aircraft.
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
segragated camp and in the city of Savannah . The depth of that
system penetrated deep into my consciousness on my trip back to camp
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
( 1943 was before the emergence of air travel ) and headed for
D.C. where we would transfer to the Southern Coast Line for Savannah.
Union Station the place where Abraham Lincoln's funeral procession
gave witness to the depth of our Nations shame. Here in the capitol of
the alliance for freedom that just proclaimed in the Atlantic
our commitment to the Four Freedoms we saw the denial of that
by the prominent signs that read "for colored only"..
The ride to Savannah
uncomfortable. This was before air conditioning. The train was fueled
coal. To stay cool, windows were opened -. Hot embers would fly into
train. Dan and I were hungry so we went to the dinning car. As we
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
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
race curtain, no circulation of air, bombarded by hot embers. I told
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
After we got back to camp
our outfit was disbanded, Dan was assigned to the Infantry and I to
Artillery. I ran into Dan about two years later in an evil place a
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
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
"Irv the inhumanity that makes possible what we saw on that train can
possible the conduct that was responsible for what happened in this
In both places the perpetrators declared that some people are
less than human. Once you get to that point people are capable of any
of brutality." It was for me an epiphany.
When I returned home I
to take advantage of the GI Bill and enrolled at Syracuse
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
program. It gave opportunity to millions. It laid the foundation for
great expansion of our national human capitol. These ex GI's became the
college professors, teachers, scientist, entrepreneurs that made
our great economic achievements. All of this was done despite a
debt that was greater than our national product--for every dollar we
we owed $1.40. Nevertheless we invested in people. Today's
leaders with their limited imagination, their behavior dominated by
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
called The Young Progressives of America. Our main focus was the
for Civil Rights. In Syracuse a city with a sizeable minority
there were no black police, no school teachers and on the main street
was still the business center no black sales clerks. On the campus
was hardly any minority students and no minority faculty. We campaigned
to change all that. Our goal was to make our community truly
In 1949 our main area of
activity was around a case called the Trenton Six. In Trenton, New
in 1948, there occurred a holdup and murder of a storekeeper. Six black
men were arrested, tried, convicted and sentenced to the electric
Recall last weeks
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
of a storekeeper. Six black men were arrested, tried, convicted and
to the electric chair". This case became known as The Scottsboro case
the North. Just think,six men sentenced to the electric chair and
of this appeared in the mainstream press. Nothing at all except for a
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
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
that the United States would somehow suffer a defeat in the cold war
the Soviet Union if New Jersey were to fail to convict any person
by the Civil Rights Congress". This case involved race, America's
and the media was perfectly willing to be subservient to the wishes of
Washington. How could we convince the emerging third world of our
to equality when six black men were to be executed?.
Fortunately a committee
made up largely of clergymen and Princeton University professors came
the rescue. They secured lawyers and forced a reopening of the case.
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
campuses, in many parts of the country, students were equally
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
for which the requisite permit was secured. At the last moment the
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
it plays a part in the speech I was about to make.
We countered the crass
of free speech by renting the ballroom of the Hotel Syracuse. To
the change of venue we took to the streets with our loud speaking
mounted on an automobile and began to traverse the city. Ultimately we
stopped at Harrison and McBride, Syracuse's public meeting corner. I
the platform and began speaking. Shortly afterward two police cars
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
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
to point out that the police pound time to monitor a political speech
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
as a corrupt administration. The police listened and after a time
me and ordered that I stop speaking. My friends demanded to know why,
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
I was arrested. I was brought to the station house, locked up, and a
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
equivalent to $15,000. My attorney protested the high bail for a
conduct case. The judge rep[lied that "this was a very serious case".
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
became such significant news. To understand you have to understand the
climate in the country. First this case was about race and the local
structure felt that any talk about race was incitement. I think, also
for most people my arrest stood in sharp contrast to the fundamental
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
featured the Feiner case and took up nineteen pages. The authors
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
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
"Mayor Costello is a champagne sipping bum---". "The 15th ward is run
corrupt politicians, and there are horse rooms operating there."
Truman is a bum." "Mayor O'Dwyer is a bum." "The American Legion is a
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
and not limited to the single denigrating adjective: bum. My put down
were quite extensive.
I admit to calling the mayor a
"champagne sipping bum", I like the alliteration. If I didn't call
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
down to the Hotel Syracuse". The inspiration for that phrase came from
my experience in Paris when I marched in the first post war
day parade. That is the way post war Parisians marched, "arm in arm".
As for the spectator who
wanted to "get that SOB" the prosecution never produced him at trial.
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
character witness but in each case the judge would not allow their
and when my attorney strenuously objected and cited case law the
judge persisted. Describing this part of the trial the authors
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
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
citizenship". Here is part of that lecture:
'The importance of Freedom of
Speech for which our founding fathers fought and died is a very
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
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
unleashed the tanks on those heroic young men and women in Tianemen
That is and was the belief of every despot, authoritarian since time
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
the night. The next day I was "sprung" pending an appeal. As I was
I was presented with a telegram .The telegram "advised" me that I was
from the University.
It took two years for the Feiner case to wind its way through the
system. First the decision was affirmed in the County Court, then the
of Appeals of New York and finally to the Supreme Court where the
was affirmed again in a six to three decision. I share with you a
from the dissent of Justice Hugo Black, "....a young college student
been sentenced to the penitentiary for the unpopular views he expressed
on issues interest while lawfully making a street corner speech in
N.Y...........Criticism of public officials will be too dangerous for
but the most courageous".
So it was off to the "big House" where I spent the
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
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
to drop a telephone line from the tower to the "house" so that a
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
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
better but there remains a profoundly troubling vestige still in our
life. It is our failure to pass the Dostoyevsky test. The Russian
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
of the prisoners are black. The African- American population is 12%.
sad data tells us that the civil rights struggle that began over 300
ago is far from over.
About the Trenton Six.
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
exonerated and freed.