E-mails from Ira Feiner,
Defendant in a Landmark U. S. Supreme Court Decision on the First Amendment
Prof. Linder:    I am the Feiner of Feiner v N.Y.-----my daughter directed me to your web site---- I liked the questions you ask----indicating to me, I hope I'm not wrong, that you comprehend the influence of period context as determinate---In any event I am now 78 years old -----children and grandchildren  and while a respectable citizen of my community I remain a "ball buster" and refuse to be submissive to injustice.From time to time I am invited to speak to Con. Law classes at Law Schools---at undergraduate classes and high schools----without going into a lengthy explanation I do a pretty good job of transporting the current generation to a time of depression, Jim Crow. war and McCarthy like suppression

Irv Feiner

Prof. Linder   Of course I have time to answer a few ?'s----but before I forget I need to ask you one-------Your name -Douglas O, is its derivation come from William O Douglas?--------I have to preface my answers with-----Feiner happened over 50 years ago----so naturally a great many details have faded from memory---but fortuitously, a young man who worked for me part-time came in with his textbook, Civil Liberties and The Constitution, by the Barker Bros.-4th edition---this text was a treasure trove, the authors used Feiner as an introduction to 1st amendment law---and somehow they got hold of the court record and were able to reproduce many of the court scenes which of course helped my memory---additionally, my youngest daughter who went to Hamilton went up to the library at Syracuse U and xeroxed all of the articles relating to Feiner and that too helped the memory.

1--The officers did give me 3 warnings---when the cops came up to me and asked to "get off" they were confronted by Jimmy Carter, not the former president but a friend and classmate, who asked why? -- the discussion took place between Jim and the cops while I listened and after a while the cops just took me by the arm and took me off the platform--

2--never felt threatened by the crowd---it was friendly crowd--there was not 75 people ---most of the people were listening at their windows----no traffic problems----the man who the police said, "get that son-of-a-bitch down or I will" was never produced at trial---he was the cops fiction--the irony in Feiner is that the police decided (my opinion) to stop me occurred when I pointed out to the crowd that the police found the time to monitor a perfectly legal speech while they were ignoring the string of "whore houses" down the street and the "horse parlor" right across the street-----four years later a 
state investigation caused a complete overhaul of the police dept. and the removal of the police chief. 

3. the police had no problem with the crowd----another irony----I was attending Syracuse under the GI Bill---$75 per month, tuition and books paid for by the gov't---but having lived in Paris for 6 months after the War I was accustomed to good restaurants so the $75 was not enough even in 1949---so every Friday night I would visit the American Legion hall where there was a poker game----the two arresting officers ---Flyn and Cook were also poker players---but they were lousy and I was good---I have always thought they were exercising a little revenge 

4-NO!---Although the conventional legal thinking among the Syracuse lawyers was that the judge would be reversed ---I and we felt differently-despite Terminiello----the national political climate, Smith Act  (Dennis case). loyalty oaths, anti-red hysteria and the fact that Feiner was about race solidified my belief that I was destined to spend 30 days in jail

I hope I answered your questions ----I would appreciate your view on how the students react to Feiner------- 

Irv Feiner

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.

Exploring Constitutional Conflict Homepage