Thinking Out Loud

By Gerard Meister

Prologue: There was an especially unique aspect to the flood of millions of immigrants from Eastern Europe – almost all Jewish – coming to our shores through Castle Garden and Ellis Island around the turn of the century, and that was the Jewish commitment to the cause of social justice, particularly as it played out with respect to civil rights.

While it is true that much has been written about the struggles of African Americans with their civil rights and the role (if any) Jews played in that struggle, I believe that some fresh insights are worthy of a second look, so let us begin by shedding some light on a most important matter which has, in my opinion, been given short shrift by historians and social commentators and that is: the right of a defendant to be tried by a jury of his peers and the role one lone Jewish immigrant played in that matter.

First articulated in the magna carta and then memorialized in the Sixth amendment to our Bill of Rights (and later to the due process of law in our Fourteenth Amendment) this right – the right to a trial with a jury of your peers – has become a central plank in the foundations of liberty among the English speaking peoples of the world and this singular right was put to the test in America during the infamous Scottsboro Boys case in the early-to-mid thirties in Alabama courts.

Segment 1: Reviewing the Scottsboro Boys Case: immigrant Sam Liebowitz waged and won the battle for justice which lasted over five years and how that victory wrought a change in the landscape of American jurisprudence.

Cast of characters in the melee: NAACP and Clarence Darrow; Earl Browder and the Communist Party; Alabama Judge Horton; alleged rape victim Ruby Bates and Reverend Harry Emerson Fosdick ; Chief Justice Charles Evans Hughes checks the jury rolls in Alabama.

In 1931, the defendants, nine southern African American youths, were “hoboeing” along with four white boys and two white girls (dressed in overalls!) on the Southern Railroad’s Chattanooga to Memphis freight on March 25, 1931. A stone throwing fight erupted when a white boy accidentally stepped on the hand of Haywood Patterson, a black youth hanging onto the side of a tank car. The heavily outnumbered whites were forced off the train and a couple of the boys went to the stationmaster in Stevenson and complained about being assaulted by a gang of blacks. The stationmaster then wired ahead to Paint Rock, Alabama where a posse of armed men stopped the train and rounded up every black youth they could find and questioned the two white girls, Victoria Price and Ruby Bates who told the posse they had been raped by the black boys. The nine captured blacks – forever to be known as the Scottsboro Boys – were tied together with a plow line and trucked over to a jail in Scottsboro.

Speedily indicted, the boys were convicted of rape and battery in a series of trials in rural Alabama. Considered by many to be really nothing more than a legal lynching, the trials came to the attention of both the NAACP and the American Communist Party. Initially, the NAACP balked at taking a stand in the matter for fear that some of the blacks might be guilty, which would harm that organization’s stance in southern communities. But as the furor over the trials mounted in the press, and in particular the New York press, the NAACP reconsidered and retained Clarence Darrow to defend the Scottsboro Boys as they came to be known

At the same time the American Communist Party eager to recruit new members brought in its legal arm the International Labor Defense (ILD) with defense attorney, Joseph Brodsky to handle the matter. But Brodsky had a better idea and advised Browder to seek out New York defense attorney Sam Liebowitz who had an astonishing record: defending seventy-eight capital murder cases, he got seventy-seven acquittals (!) and one hung jury.

Surprisingly, the Scottsboro boys opted to go with the ILD rather than the NAACP and Clarence Darrow. Enter Samuel Liebowitz, a Jewish lawyer from New York, who was born in Romania in 1893 and brought to America by his immigrant parents in 1897. Serving pro bono from 1931 through 1937, his victory in the case was attained through the Supreme Court decision of 1935 in Norris v Alabama when Liebowitz produced jury rolls which included blacks, but that the rolls – Liebowitz maintained – were clearly forged. Chief Justice Charles Evans Hughes then asked if he could prove that and Liebowitz produced a magnifying glass for Hughes, who inspected the document and silently passed the magnifying glass and the document to the next Justice and so on down the line. The Court then held that the defendants were denied the due process of law and all the guilty verdicts were set aside. This was the first time that this nefarious, racist practice was dragged screaming into the sunlight and from that point on America was the better for it – surely not perfect – but better for sure.

Epilogue: Bits and pieces of the case seem to drag on forever, but by January 23, 1989 the last of the Scottsboro boys were dead. And although Hannah Arendt termed the climate surrounding the trials a “banality of evil” there were many people both black and white from the north and the south that stood tall for the cause of justice: certainly Alabama Judge James Horton, who on June 22, 1933 set aside the death penalty verdict on Haywood Patterson and ordered a new trial. Facing political suicide Judge Horton declared, “Let justice be done, though the heavens may fall.” Judge Horton was never again elected.

Special kudos go to Ruby Bates who finally recanted her rape allegations loudly and clearly and took the shame of it for all the world to know, with a special assist to Reverend Harry Emerson Fosdick for helping guide her to that mountain top.

And finally to that uniquely talented, tenacious bulldog of an attorney Sam Liebowitz, who gets a place of honor in the Pantheon of immigrants who helped shape our nation.

Segment 2: How Marion Anderson got to sing at the Lincoln Memorial on Easter Sunday, April 9,1939: research included some newspaper articles, but in the main talking about impresario Sol Hurok to Max Meister, 1889-1874, the author’s father who was Hurok’s kinsman and friend. Further, both Meister and Hurok were (socialist) lecturers at The Brooklyn Labor Lyceum in the 1920’s. Additional material was garnered from the author’s sister, Lillian Pace (nee Meister) 1910-1987, who was Hurok’s private secretary in the early to mid thirties.

Marian Anderson’s convoluted path to the Lincoln Memorial began when she signed on with Impresario Sol Hurok. What with Arturo Toscanini, famed conductor of the “NBC Symphony of the Air,” declaring that Ms Anderson’s voice as, “one that comes along once in a hundred years” this was quite an achievement for Hurok. Hurok who had an uncanny sense of timing and an appreciation of the value of publicity then signed Ms Anderson on to do a concert at Constitution Hall, a venue owned by the DAR (Daughters of the American Revolution). The DAR promptly cancelled the engagement because Ms Anderson was a Negro and Hurok was in his element: on the side of righteousness and ready to go on the attack!

Enter Eleanor Roosevelt, who promptly resigned from the DAR and had cut her social awareness teeth as a volunteer social worker at the turn of the century teaching Jewish children dance and exercise at settlement houses on the Lower East Side; and where she met my father, helping him in his work with the children of the Paterson Silk Mill strikers (1913). And twenty-odd years later as First Lady, she invited Ms Anderson to sing in the White House.

So we had a “perfect storm” of activists waiting in the wings when Walter White of the NAACP bristled at the DAR not allowing a Negro – Marian Anderson – to perform at Constitution Hall. Hurok pounced (knowing the First Lady’s make up) calling for the concert to be held at the Lincoln Memorial and on Easter Sunday. In short order (we can assume and be one hundred and one per cent certain that Eleanor leaned on FDR and FDR leaned on the Secretary of the Interior, Harold L. Ickes, who then gave permission for Ms Anderson to sing on the steps of the Lincoln Memorial and a unique, but serious quest for racial equality in America had begun.

A crowd of 75,000 showed up and this new march towards racial equality in America had taken its first baby steps. The publicity about the social protest demonstration was world wide; almost, but not quite equal to the one that came a long on October 16, 1963, when another great African American, Dr. Martin Luther King, Jr. held his million man march putting us yet closer to his dream of equality for all Americans.

Segment 3: Opponents of Anti Semitism in America finally get its champion, the Anti Defamation League (ADL) and the unheralded and unknown to this day, Aaron Sapiro .

In the years between the first and second World Wars it became almost de rigueur to be anti Semitic in America, what with avowed anti Semites Senator Rankin and Congressman Bilbo (both from Mississippi) stalking the halls of Congress and Father Coughlin and Gerald L.K. Smith permeating the air waves and print media. Incredibly, up until 1930, Roget’s Thesaurus printed the following description of Jews: cunning, rich, usurer, extortioner, heretic!

But the major player in blaming the Jews for the ills of the world was an iconic figure in American history, if not the world: Henry Ford, publisher of The Dearborn Independent a viciously anti Semitic newspaper published throughout the 1920’s and had a circulation of 700,000 (quite a remarkable figure for that era). The clarion call against this virulent plague of anti Semitism was first sounded by a fledgling organization the Anti Defamation League (formed in 1913 by Sigmund J. Livingston, a German born Jew) when the ADL released its initial pamphlet “The Poison Pen” in September, 1930, targeting The Dearborn Independent and the men behind its series of canards about “The International Jew.”

Moreover this call was heard and answered by scores of Americans from all walks of life including President Woodrow Wilson and past Presidents William Howard Taft and Theodore Roosevelt and included W.E.B. DuBois, Clarence Darrow and William Jennings Bryan amongst others. A petition “The Perils of Racial Prejudice” was drawn up calling The International Jew, “un-American and un-Christian.”

Yet, Ford’s diatribes against the Jews continued unabated, the problem being that hate speech in America was not defined or circumscribed in any way. Ergo, he printed whatever, wherever and whenever he wanted!

However, the battle against Ford and his anti Semitic ranting was well and truly joined, almost innocuously, when in 1927, a young Jewish attorney, Aaron Sapiro, a son of immigrants, sued Henry Ford for defamation and brought a million dollar federal libel suit in Detroit against his newspaper after accusations that Sapiro’s advocacy on behalf of agricultural cooperatives was nothing more than a conspiracy against the individualistic spirit of American husbandry by the International Jew. Enter the prominent constitutional lawyer Louis Marshall who was also president of the American Jewish Committee and the trial began producing banner headlines.

Ford, desperate to avoid the witness stand engineered a mistrial and sent emissaries to meet with Marshall to mediate the matter. Marshall wrung an apology out of Ford (which Marshall wrote!) and Ford settled with Sapiro out of court but, not until Sapiro’s lawyer got on record that Ford had libeled all Jews. So the first step – although a halting one – to define hate speech in American jurisprudence was taken. In truth, Sapiro was the Jewish David to the anti Semites’ Goliath, Henry Ford.

The upshot was that though American law did not acknowledge hate speech per se, Marshall prevailed on Ford to sign a public statement that did and newspaper editors from Maine to California took note. And so did Ford, who finally ceased his anti Semitic tirades.

Moreover Ford’s children and grandchildren took note and participated in helping to heal the wounds caused by their patriarch. In fact, Ford sponsored “Schindler’s List” on television. And today I drive a Ford! So the American Dream lives on.