Poem: "Decade of Darkness"

A new era was on our horizon —
So many hopes and dreams for all of us —
Then shadows draped across the rising sun:
That new era? A decade of darkness.

Too few survived to see the decade close,
Claimed by God’s wrath, wicked evil of man —
Oh the disgust, anger we’ll here disclose! —
Lost in our country and a distant land.

Earth grew scarier, smaller one Tuesday
As terror struck us — us, we were attacked! —
And those events made our nation crazy! —
We’re a nation still borne with a soul wracked …

We — he — lost the way hunting enemies:
The tyrant gone, we were occupiers;
So much lost, at such cost across the seas —
We’ll be cheering when — if — this war expires.

Nature’s fury exposed mankind’s folly:
The desperate and dying in our own towns;
Homes, lives — bodies — swept away so quickly;
Here, here? Did I see those sights? Hear those sounds?

We saw peace shattered in a quiet burg:
32 — too high for names? — massacred;
Madness, horror found innocents to purge:
What our sacred culture of violence spurred!

Unscathed? Consider yourself a winner;
But, just pain — darkness forever — are known
To those with an empty seat at dinner —
If they still have a home to call their own.

June 8, 2008

Bong Hits 4 Free Speech

When the Supreme Court ruled on Monday that student Joseph Frederick wasn’t wrongfully punished for unfurling a 14-foot banner reading “BONG HiTS 4 JESUS” during an Olympic torch relay school students were released from school to attend, Chief Justice John Roberts ruled for the majority, “Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick.” But the banner didn’t say “TAKE BONG HITS” or explicitly promote an illicit act, so what did the court actually rule? Even if the message is ambiguous and nonsensical, if school administrators interpret it as tacitly promoting an illegal act or in violation of school policies and objectives, then they have the constitutional OK to censor or punish the student involved. As Justice John Paul Stevens ruled for the minority,

“In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding — indeed, lauding — a school’s decision to punish Frederick for expressing a view with which it disagreed.”

So much for that April Fool’s edition this year, journalism students.

There’s no question public school students in school simply do not have the same rights as adults or even minors when outside school. Students may not have the same rights but do have similar rights: searches and seizures can be conducted with “reasonable suspicion” rather than “probable cause” but “Schoolchildren have legitimate expectations of privacy.” The court has also ruled “Students facing temporary suspension from a public school have property and liberty interests that qualify for protection under the Due Process Clause of the Fourteenth Amendment.” Students have the right to give their side of the story, cross-examine witnesses, see and present evidence against and supporting them, and be afforded a hearing, at least if they face prolonged suspension.

The first famous case to affirm students’ rights was in 1943 when the court affirmed the right of Jehovah’s Witnesses not to salute Old Glory or say the Pledge of Allegiance (“under God” wasn’t included into the Pledge until 1954 so that was a non-issue). The students had the right to refrain not because it violated their religious freedom rights but their free speech rights to quietly dissent. Justice Robert Jackson ruled for the majority, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” The most important students’ rights case has been Tinker v. Des Moines in 1969, when Justice Abe Fortas ruled for the majority, “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Furthermore, “A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments.” The issue at hand was schoolchildren suspended for wearing black armbands to protest the Vietnam War, but because the action didn’t cause a disruption, didn’t infringe other students’ rights and was a symbolic political expression, it was protected free speech.

The first court ruling to curtail students’ free speech rights was Bethel v. Fraser in 1986, when the court ruled that student speech that is not legally obscene but patently offensive may be censored and punished. Chief Justice Warren Burger ruled, “It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” Matthew Fraser was his pal’s campaign manager for student office and delivered the following speech at a school assembly:

“I know a man who is firm — he’s firm in his pants, he’s firm in his shirt, his character is firm — but most ... of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts — he drives hard, pushing and pushing until finally — he succeeds. Jeff is a man who will go to the very end — even the climax, for each and every one of you. So vote for Jeff for A.S.B. vice-president — he'll never come between you and the best our high school can be.”

Students in the audience became a bit rambunctious but not riotous. But, the court argued, because the speech was given at a school-sponsored function before an audience of unassuming students, not to mention minors, and was filled with sexual innuendo, Fraser wasn’t wrongfully suspended for delivering his speech. “The marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content of respondent's speech in this case seems to have been given little weight by the Court of Appeals,” Burger ruled. Justice Thurgood Marshall dissented, arguing there was no disruption, and Justice Stevens dissented, saying that Fraser had no expectation to believe he was violating written school rules or would be punished with a three-day suspension. “It seems fairly obvious that respondent’s speech would be inappropriate in certain classroom and formal social settings,” Stevens ruled. “On the other hand, in a locker room or perhaps in a school corridor, the metaphor in the speech might be regarded as rather routine comment.” Fraser’s speech may have been inappropriate for such a forum — although his punishment was certainly gratuitous — but how far should “vulgar and offensive terms in public discourse” be restricted? Can a student be suspended for wearing a T-shirt with the Confederate flag (without any lucidly racist language)? Can a student be punished for having a crucified Jesus sticker on his binder? A symbol used by hate groups and a picture of a dead body could be offensive to some student or administrator.

The next significant case was Hazelwood v. Kuhlmeier in 1988, a case involving a high school censoring two student newspaper stories: one on teenage pregnancy and one on divorces. The former used anonymous sources but their anonymity wasn’t significantly secured, and the latter wasn’t written very objectively. Justice Byron White ruled for the majority that the school didn’t infringe the newspaper staff’s free speech or free press rights, especially since doing so was school policy and not a sudden departure from non-censorship practices. The decision was sweeping: “Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns.” “School-sponsored expressive activities” could also include yearbooks, literary magazines, plays and art displays. In a dissent, Justice John Brennan, who concurred in Bethel, acknowledged that disruptive and offensive conduct runs afoul of “pedagogical functions” but

“Other student speech, however, frustrates the school's legitimate pedagogical purposes merely by expressing a message that conflicts with the school's, without directly interfering with the school's expression of its message: a student who responds to a political science teacher's question with the retort, ‘socialism is good,’ subverts the school's inculcation of the message that capitalism is better.”

So after Hazelwood, does that mean administrators can pull a yearbook photo of a couple kissing? Or censor a poem in a literary magazine about suicide? Or refuse to allow the Drama Club to perform Romeo & Juliet because several people are killed in the play? Or take down a photograph in a student art gallery of a group of girls doing the “Charlie’s Angels” pose brandishing finger guns?

So what does Morse v. Frederick tell us (besides the fact the Ninth Circuit remains the most overturned appeals court)? For one, it says that school administrators’ authority extends to off-campus locations and school-initiated activities even if they’re at public places and the event isn’t school-sponsored, such as a zoo or museum. Seems reasonable enough, to say students are still under the watch and rules of the school on field trips. But back to the original question of “Bong Hits.” Roberts heavily relied upon Fraser and partly on Hazelwood, even though the former concerned sexually lewd verbal speech and the latter concerned editorial discretion and both pertained to school-sponsored forums. He also incorporated two drug testing cases, from 1995 and 2002, when the court OK’d random drug testing for student athletes and any students participating in extracurricular activities, respectively. “Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, thus poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse,” Roberts ruled. Frederick insisted he only wanted to grab the attention of cameras and wasn’t promoting illicit drug use but wouldn’t he say the same thing if his banner read “LEGALIZE MARIJUANA” or “WAR ON DRUGS IS WRONG”? Several religious groups usually at odds with ACLU supported Frederick, fearing that students’ religious rights could be curtailed if the court sided with the principal. Roberts tried to back off from any sweeping First Amendment infringement, ruling, “After all, much political and religious speech might be perceived as offensive to some. The concern here is not that Frederick’s speech was offensive, but that it was reasonably viewed as promoting illegal drug use.” Justices Samuel Alito and Anthony Kennedy ruled something similar in a concurrence

“on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.”

But where and how do you draw the line between advocating an illegal act and simply contributing to dialogue? Does a political message lose its constitutional protection simply because it’s presented in an unorthodox or satirical manner? Justice Stevens wondered if “the court would support punishing Frederick for flying a ‘Wine Sips 4 Jesus’ banner,” which may be advocating drinking or religion or both. Roberts himself said Frederick’s message was “cryptic” but could mean “[Take] bong hits,” “Bong hits [are a good thing]” or “[we take] bong hits.” But couldn’t it hypothetically also say “Bong hits [are bad]” or “[Don’t do] bong hits”? As for future “Bong hits” related issues and cases, that’s for the schools and the courts to decide.

The biggest fear after Morse, though, may be a right-wing judge citing Justice Clarence Thomas’ concurrence:

“In my view, the history of public education suggests that the First Amendment , as originally understood, does not protect student speech in public schools. ... I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.”

Poem: “32: In Honor of Virginia Tech”

Did that really happen that April spring day?
When 32 lives in an instant were swept away?
That terrible day: 32 lives lost, ended too soon;
The day Heaven was draped in orange and maroon.

Blacksburg’s winds that day roared loud and sweeping —
That was the tortured sound of God Himself weeping.
That tragedy turned all of humanity into pallbearers:
A heartbreak so painful, strangers became mourners.

A nightmare too horrific for words, just grief;
All of us clinging to our precious belief
That hope will shield us from our worst fears;
But for that day, that time, there were only tears.

That day we hugged a loved one a little tighter
And sought the hope to make our souls stronger;
We learned you will never be alone, whatever you do,
As long as there are people who care about you.

We grieved together, all united with one noble heart;
Whatever we could do, we wanted to do our part.
If I could share my soul, my strength with another,
I would, we all would, if only because he is my brother.

Whoever we were, wherever our loyalties lay,
The individual ceased to matter that gruesome day.
One phrase brought the world closer together solemnly:
“Today we are all Hokies!” we proclaimed proudly.

Tragedies may shape us but they cannot define us,
As long as we care for each other in times of distress.
Some wounds may heal; some scars may last forever —
Thirty-two gone but not forgotten: We will always remember.

May 7, 2007

In memoriam: RMS Titanic — April 15, 1912

Each American generation experiences a moral catastrophe, a cataclysmic event which unnerves the population, shakes the era’s complacency and becomes a saga of tragedy, heroism, villainy, romanticism and conspiracy; before Sept. 11, 2001, before John F. Kennedy’s assassination, before Pearl Harbor, there was the Titanic disaster. The loss of man’s unsinkable ship also shattered faith in progress and technology, which would be repeated with the Hindenburg, Edmund Fitzgerald, Challenger and Columbia disasters, albeit those were considerably less in scope than the Titanic tragedy. Although there were maritime disasters with greater loss of life before and after Titanic, it was — and has remained — assuredly the most infamous in history.

On April 16, 1912, before the full details of the disaster became known to the world, The Wall Street Journal declared, “The gravity of the damage to the Titanic is apparent but the important point is that she did not sink. … Man is the weakest and most formidable creature on Earth; his brain has within it the spirit of the divine, and he overcomes natural obstacles by thought, which is incomparably the greatest force in the universe.”

Upon its construction in 1912, the Titanic was the largest ship on earth, being 882 feet, 9 inches long and weighing 46,328 tons. Titanic’s passengers ranged from the world’s wealthiest tycoons to the poorest immigrant families. Newspapers across America reported how many residents of their cities or states had perished (“List of Washingtonians on Fated Steamer Grows” and “Three of Ten Jersey Passengers are Safe,” for example). About one-third of all those lost on the Titanic were crewmen from Southampton, England. Of the 1,513 victims of the Titanic disaster, more first class men survived than third class children. Although some crewmen, unsure or ignorant of their responsibilities or the seriousness of the disaster as it was happening, did prevent third class passengers — many of whom didn’t speak English — from reaching the boat deck, steerage women were allowed access to the boats but many refused to leave their husbands, and most steerage passengers got lost in Titanic’s eight decks trying to reach the lifeboats. Entire families were lost on the Titanic; to name a few:

• Hudson and Bessie Allison and their daughter Loraine, 2. (Son Trevor, 11 months, was rescued)
• Anders and Alfrida Andersson and their children Sigrid, 11, Ingeborg, 9, Ebba, 6, Sigvard, 4, and Ellis, 2.
• Edward and Margaret Ford and their children Dollina, 20, Edward, 18, William, 16, and Robina, 7.
• Frederick and Augusta Goodwin and their children Lillian, 16, Charles, 14, William, 11, Jessie, 10, Harold, 9, and Sidney, 1.
• Frances Lefebvre and her children Mathilde, 12, Jeannie, 8, Henry, 5, and Ida, 3.
• James Lester and his nephews Alfred, John and Joseph Davies.
• Andrew and Eliza Johnston and their children William, 8, and Catherine, 7.
• John and Annie Sage and their children Stella, 20, George, 19, Douglas, 18, Frederick, 16, Dorothy, 14, Anthony, 12, Elizabeth, 10, Constance, 7, and Thomas, 4.
• Julius and Emelie Vanderplancke and his sister Augusta Maria, 18, and his brother Leo, 15.

Among the famous who were lost included Titanic Capt. Edward J. Smith, real estate tycoon John Jacob Astor, Macy’s department store owner Isidor Straus and his wife Ida, Pennsylvania Railroad Vice President John B. Thayer, general manager of Grand Trunk Pacific Railway Charles Hays, presidential adviser Archibald Butt, artist Francis D. Millet, journalist W.T. Stead, banking magnate George Widener, Broadway producer Henry B. Harris, millionaire Benjamin Guggenheim, and Titanic’s designer with Harland & Wolff shipbuilding company Thomas Andrews. Milton Hershey, the corporate confectioner, and financier J.P. Morgan — whose bank subsidized International Mercantile Marine, the trust which owned the White Star Line — booked passage on the Titanic but canceled their reservations. Steel tycoon Andrew Carnegie wrote about Astor, Straus, Stead, Hays and Millet on April 21, “No epitaph needs to be written, no eulogy pronounced over them, for as long as the world endures their epitaph and eulogy will be found in the women and children, and their descendants, for whom these men sacrificed their lives.” Titanic survivor Kornelia Andrews of Lifeboat No. 10 would recall: “The men [made] no effort to get into the boat. As we pulled away we saw them all standing in an unbroken line on the deck. There, they stood, Maj. Butt, Col. Astor, waving a farewell to his wife; Mr. Thayer, Mr. Case, Mr. Clarence Moore, Mr. Widener, and hundreds of other men bravely remaining on board.”

• Thomas Andrews, 39, was a meticulous, ambitious shipbuilding designer who had been with Harland & Wolff since age 16. He was the first person to realize and convey to Capt. Smith and White Star Chairman J. Bruce Ismay that the iceberg had mortally damaged Titanic. Andrews did what he could to have passengers put on lifebelts and escape in lifeboats. He was last seen staring at a painting of Plymouth Sound, England, in the Smoking Room. Thomas Andrews Jr. Memorial Hall was dedicated in 1915 in his hometown of Comber, Ireland.
• John Jacob Astor IV, 47, a descendant of the famous fur trader with a personal net worth of up to $200 million (in 1912-era value), was a principal contributor to the construction of the Waldorf-Astoria Hotel in New York, a writer and even an inventor. He was conferred the title of colonel during the Spanish-American War for his shipbuilding services. Survivors attested to how he put his pregnant wife Madeleine in a lifeboat and then helped other women into boats without doing anything to save himself; rumors circulated that he released passengers’ dogs from their kennel cages and saved a young boy by putting a women’s hat on his head to disguise his gender so he’d be allowed to enter a lifeboat. Survivor Hilda Slater would recall: “I saw Col. John Jacob Astor hand his young wife into a boat tenderly and then asked an officer whether he might also go. When permission was refused he stepped back and coolly took out his cigarette case. ‘Good-bye, dearie’ he called gaily, as he lighted a cigarette and leaned over the rail. ‘I’ll join you later.’ ”
• Col. Archibald Butt, 46, a Spanish-American War veteran and good friend and aide to Presidents Teddy Roosevelt and William Howard Taft, was an affable man and, being a former journalist himself, was well-liked by reporters in Washington, who Butt often helped to report their stories; they, and other good friends of the colonel, knew him as “Archie.” “He was like a member of my family, and I feel his loss as if he had been a younger brother,” President Taft said in a statement on April 19. “… I knew that he would certainly remain on the ship’s deck until every duty had been performed and every sacrifice made that properly fell on one charged, as he would feel himself charged, with responsibility, for the rescue of others.” The Butt Memorial Bridge was built in his hometown of Augusta, Georgia, in 1914, and a memorial fountain dedicated to Butt and his friend Millet was dedicated in Washington, D.C.
• Benjamin Guggenheim, 46, was a member of the Guggenheim mining magnate family but didn’t inherit the family fortune and lost most of his money in poor investments. He became estranged from his wife and stayed in Europe, coming back to America on the Titanic with his mistress. Yet, Guggenheim and his servant Rene Pernot refused to save themselves, and Guggenheim told survivor James Etches, “If anything should happen to me, tell my wife in New York that I’ve done my best in doing my duty.”
• Henry B. Harris, 45, was a theater manager, philanthropist and vice president of the Theater Managers of Greater New York and president of the Henry B. Harris Company; he had no fewer than 16 companies on tour during a single season. When an officer forbade Harris from entering a lifeboat, he responded, “I understand. The women must go first.” Actor Frank McIntyre, who on April 17 was unsure if Harris had survived or not, said Harris was “an honest man, a man of unusual foresight and mental ability, a man with the faculty of being able to make a success of a theatrical venture and at the same time retain the respect and confidence of every person with whom he was associated. Mr. Harris was a remarkable character. His loss would prove a blow to the profession in general.”
• Charles Hays, 55, had worked for railroad companies since age 17 and in 1896 became general manager of Grand Trunk Pacific Railway in Montreal. He had spearheaded the effort to build a second Canadian transcontinental railroad. Hays put his wife and daughter into a lifeboat but didn’t believe the ship would sink in less than 10 hours. During his memorial service, Grand Trunk suspended all rail operations for five minutes in a moment of mourning. Hays’ epitaph states: “And so he died and the example of his simple, devoted consecrated life is our priceless heritage. We are a different people, we are a better people, because this man worked and loved and died.”
• Francis D. Millet, 65, was a Civil War veteran, former war correspondent, writer and painter who painted murals at Trinity Church in Boston and was a member of several societies for the fine arts. He had just been appointed head of the American Academy at Rome in 1912. U.S. Sen. Elihu Root would say about Millet, “He must have been born with a sense of the beautiful and a love for it, for he devoted his life to it. ... He was one of the most unassuming and unselfish of men. ... He was a man of great strength and force, decision and executive capacity.” A memorial fountain dedicated to Millet and his friend Col. Butt was dedicated in Washington, D.C.
• Capt. Edward J. Smith, 62, was a veteran of over 30 years with the White Star line and the highest paid captain at the time. He was a well-liked captain and had piloted several roundtrips with Titanic’s sister ship Olympic but never in his career dealt with the calamities of a shipwreck, which probably worked against him as he managed rescue efforts in Titanic’s final hours. He planned to retire after Titanic’s maiden run. Smith said after Olympic collided with a ship while cruising close to land, “… the Olympic is unsinkable, and the Titanic will be the same when she is put in commission. Why, either of these vessels could be cut in halves and each half would remain afloat indefinitely. The non-sinkable vessel has been reached in these two wonderful crafts.” His body was never recovered and what happened to him as Titanic started lifting upward remains a mystery, although some claimed Smith had committed suicide while others say he rescued a child from drowning by carrying it to a lifeboat from the ocean. His wife Eleanor posted a message on the White Star office’s Southampton office: “To my poor fellow sufferers. My heart overflows with grief for you all, and is laden with sorrow that you are weighed down with this terrible burden that has been thrust upon us. May God be with us and comfort us all.” A statue of Smith was erected in his hometown of Lichfield, England.
• W.T. Stead, 62, was a British journalist and editor, best known for exposing widespread child prostitution. He was also a well-known antiwar advocate, preaching “peace through arbitration” and the formation of a European union of states. Invited by President Taft, Stead was on the Titanic to visit America to speak during a convention on “universal peace.” J.A. McDonald, editor of The Toronto Globe, said on April 22 during a memorial service, “Stead was an ordained apostle of universal peace. He pleaded for it with kings, czars and ministers. He fought with the beasts of greed and plunder and the fire-eating jingoists. … Had he been here tonight he would have undoubtedly made us face the awful facts of war — its inconceivable folly, its intolerable burden.”
• Isidor Straus, 67, a philanthropist and former congressman, gained full control of R.H. Macy and Co. in New York with his brother Nathan in 1896. Straus was prohibited from entering a lifeboat on Titanic and his wife Ida refused to leave his side, saying, “We have been together for many years, and where you go, I go; I will not be separated from my husband. As we have we lived, so will we die — together.” They were revered in synagogues all over New York City in memorial tributes. On April 20, the Rev. Dr. Rudolph Grossman told a congregation, “There is one which we as Jews especially mourn — Isidor Straus, a leader in every good and noble cause, whether patriotic, religious or educational. We must call attention also to the wonderfully beautiful, almost sublime, deed of his noble wife, who refused to leave him.” The Straus Memorial was erected in Straus Park, New York City, in 1915.
• John B. Thayer, 49, was second vice president of the Pennsylvania Railroad. His wife Marian escaped the Titanic in Lifeboat No. 4 and his 17-year-old son Jack survived clinging to overturned Collapsible Lifeboat B. Survivor Martha Stephenson recalled that she saw the elder Thayer attempt to launch a collapsible boat with other men when a huge wave washed them off the deck. “Mr. Thayer was one of the bravest men I ever saw,” she said. “Immediately after we felt the shock of the collision he bent every effort to comfort and console the women and to see that they got safely into the lifeboats. He refused to give a thought to his own safety until he had done all that mortal man could do for us.”
• George Widener, 50, was a member of the Fidelity Trust Co. of Philadelphia, operator of a successful streetcar firm and heir to the city’s largest fortune. Survivor Robert P. Daniels later recalled about Widener on Titanic, “Mrs. Widener did not want to go, and asked to be allowed to stand by her husband. However, Mr. Widener told her to save herself and son, and forced her almost to seek the lifeboat. Mrs. Widener kissed her husband good-bye. He told her not to worry, as it was possible that all would be saved, and the danger did not seem great.” Widener’s 27-year-old son, Harry, also perished in the disaster. The Harry Elkins Widener Memorial Library, Harvard University, was dedicated in 1915.

Most of the 705 Titanic survivors’ lives, careers and/or reputations were ruined by the disaster or its aftermath and some refused to talk about the tragedy for the rest of their lives. Virtually all were haunted by their fight for survival, parting from perished loved ones and the screams of the dying in the frigid Atlantic that night. But a handful of Titanic survivors wrote about their experiences, including second class passenger Lawrence Beesley, Second Officer Charles Lightoller, and first class passengers Jack Thayer and Archibald Gracie. The men who fled the ship in lifeboats were criticized for saving themselves while other men bravely went down with the ship, and especially since so many women and children had perished. Some women on the rescue ship Carpathia scorned some of the men in person, demanding to know how they were able to escape in lifeboats when they were forced to leave their husbands behind. Some families were forced to return to Europe because their family wage-earners had died in the disaster. At least three survivors, including Jack Thayer and Frederick Fleet, the lookout who first spotted the iceberg, would commit suicide. Although totally misconstrued from the facts, Sir Cosmo Duff Gordon was accused of bribing the other men in Lifeboat No. 1 to keep them from returning to the foundering to rescue swimmers. White Star Chairman J. Bruce Ismay, although officially exonerated of any wrongdoing at the American and British inquiries of the disaster, was marred for life as a coward who escaped the Titanic in Collapsible Lifeboat C while hundreds perished on his ship. All of Titanic’s surviving officers — Lightoller, Third Officer Herbert Pitman, Fourth Officer Joseph Boxhall and Fifth Officer Harold Lowe — would remain in shipping or enter the British Navy but would never command their own vessel.

The first Titanic movie debuted only a month after the disaster, starring Titanic survivor Dorothy Gibson, and propaganda officials in Nazi Germany produced their own Titanic movie with an anti-Britian slant.

The Titanic disaster, the loss of what was called a “practically unsinkable” ship upon her construction, was also marred by rumors and conspiracy theories. One conspiracy was that a boiler explosion sank the ship, and an iceberg-collision story was concocted to spare insurance losses (Lloyd’s of London did lose £500,000 after the unsinkable ship it insured for £1 million did in fact sink). The Daily Sketch of Britain even published an article eight days after Titanic’s sinking headlined, “Hope diamond again! Was the jewel of ill-luck on the Titanic?” The article speculated this, but the rumor was untrue. In 1940, a woman claiming to be Loraine Allison (a 2-year-old who died with her parents) came forward and with her lawyer said she had been rescued by Thomas Andrews (who also died on Titanic) and that J. Bruce Ismay paid Andrews to “disappear” so word of the ship’s speed wouldn’t be revealed; unable to prove her claim, the woman eventually stopped corresponding with the Allison family. Psychics and ordinary people started coming forward who claimed they predicted or dreamt the disaster.

The most renowned heroes of the disaster included the Titanic’s band, chief Marconi operator Jack Phillips and Carpathia’s captain, Arthur H. Rostron.
• The eight-member band, led by violinist Wallace Hartley, 33, played ragtime for passengers who gathered on deck as the ship sank and lifeboats were being launched. Although no one can be certain, soon before the foundering, according to legend, Hartley had the band play the hymn “Nearer My God to Thee.” The whole band died in the disaster. Hartley’s body was later recovered, and 40,000 mourners lined the route of his funeral procession in his hometown of Colne in Lancashire, England. A Worchester Evening Gazette article published on April 20 quoted survivor Hilda Slayer as saying, “From the moment the vessel struck, or as soon as the members of the orchestra could be collected, there was a steady round of lively airs. It did much to keep up the spirits of everyone and probably served as much as the efforts of the officers trying to prevent panic.” Memorials, statues and plaques would be erected to honor Hartley and Titanic’s band in places as far away as Australia, and the Apollo Club of Brooklyn held a fundraising concert on May 5 for the musicians’ families; the White Star Line sent the band’s families bills for lost uniforms.
• John “Jack” Phillips, 25, remained at his Marconi station with assistant Harold Bride until Capt. Smith dismissed them. Bride started collecting whatever belongings he had ready to escape when he saw Phillips remain at his post; “I learned to love him that night,” Bride later recalled. Bride survived by clinging to overturned Collapsible Lifeboat B, but Phillips perished and his body was never found. Reports later claimed that a group of fear-crazed first class passengers tried to steal the large lifejacket Phillips was wearing later that night. The largest Titanic memorial in the world is the Phillips Memorial Cloister in Godalming in Phillips’ home-county of Surrey, England, unveiled in 1914.
• The Carpathia was 48 miles from Titanic when Capt. Arthur H. Rostron, 42, received a Marconi distress message from the ship. He readied Carpathia with food and blankets, and kept passengers in their staterooms as the ship sped toward the disaster scene in the icy Atlantic. The Carpathia arrived two hours after it first received a distress call at dawn around 4 a.m., 90 minutes after Titanic had sunk. After the survivors were brought aboard, Rostron held a religious service of thanks for those rescued and a memorial service for the lost. After a stormy voyage at sea, the Carpathia arrived in New York at 8 a.m. three days after the disaster on April 18. For his heroism, Rostron was awarded the Congressional Medal of Honor and became a Knight Commander of the Order of the British Empire, and later became commodore of the Cunard line. Titanic survivors presented him with a gold medal and silver “loving cup.”

The greatest villain of the Titanic disaster was Stanley Lord, 34, captain of the Californian, a ship stopped no more than 20 miles away from Titanic after it struck the iceberg. At 11:30 p.m., the Californian’s crew and Lord noticed a nearby vessel stop but thought it was another cargo ship no more than four miles away, with no sight of Titanic’s massive funnels or sounds of steam being released. Both Capt. Lord and Californian wireless operator Cyril Evans were asleep when Titanic’s first wireless distress messages were broadcast after midnight. Officers on Titanic’s deck noticed a ship off the port bow before 1 a.m. and attempted to contact it with Morse lamp, but failing to do so began firing distress rockets. Crewmen on the deck of the Californian noticed the Morse signals and Lord, who never went on deck himself, told them to respond in kind, but the ship did not respond. Lord knew the Titanic was in the vicinity but was convinced this vessel signaling its Morse lamp could not have been a massive steamship. When the crewmen reported to Lord that they witnessed rockets over the horizon and then see them apparently steam way, the captain had Evans contact the ship then Lord went to sleep. American inquiry chairman, U.S. Sen. William Alden Smith, grilled Lord on the question of the distress rockets:

Smith: Captain, these Morse signals are a sort of language or method by which ships speak to one another?
Lord: Yes, sir; at night.
Smith: The rockets that are used for the same purpose and are understood, are they not, among mariners?
Lord: As being distress rockets?
Smith: Yes.
Lord: Oh, yes; you never mistake a distress rocket.

Lord said an officer had reported to him that he saw rockets but reported they were not distress rockets. Furthermore, Lord said that if Titanic was nearly 20 miles from the Californian, as indicated by her coordinates, then Morse signals could not have been seen by or from his ship and rockets “might have been mistaken for a shooting star or anything at all.” It took the Californian 2½ hours to reach the disaster scene the next morning, so the soonest the Californian could’ve reached the Titanic after the distress rockets were fired was 3:30 a.m., an hour after the ship sank. Lord was scolded by both the American and British inquiries and the public, and was fired by the Leyland Line despite never being charged or convicted of anything. He was outraged by his character’s portrayal in the movie “A Night to Remember” in 1958 and contacted the Mercantile Marine Service to clear his name but to no immediate avail; Lord died in 1962. An investigation in the early 1990s cleared him of manslaughter but declared he should’ve acted more vigilantly to the distress rockets. Yet, a third ship of some kind, seen by Titanic’s passengers off the port bow and perhaps spotted by the Californian’s crew, was likely sailing in the 20 miles between the Titanic and Californian; but the existence or identity of this ship can never be proven.

Like the tragic events of historical proportion that followed, it would take the Titanic disaster to right misbegotten wrongs:
• Titanic had 20 lifeboats, four more than what was required by outdated maritime law which dictated lifeboat quantity based on tonnage not occupancy. Each lifeboat could hold about 58 people for a maximum capacity of 1,178 people (still only one-third of Titanic’s maximum capacity) but almost all of the lifeboats left Titanic less than full — Lifeboat No. 1 had only 12 people on board — with the expectation that they would return to the ship to pick up more passengers, but none did. Also, after Titanic sank, almost all the lifeboat survivors refused to return to pick up swimmers because they feared being swamped and capsized. After the disaster, all passenger ships were fitted with enough lifeboats.
• Titainic’s sinking despite its “unsinkable” design was technically not an engineering failure; Titanic was not designed to withstand the damage inflicted by the iceberg. The ship could stay afloat with the forward four watertight compartments flooded, but the iceberg ruptured the hull of the first six, caused partly by Titanic’s steel made brittle by freezing temperatures during the voyage. However, had the watertight bulkheads stretched higher and had watertight ceilings then the water would not have flowed up and into adjacent compartments, causing the Titanic’s stern to tilt upward as it did while sinking. New shipbuilding designs increased bulkhead size and included a full double hull.
• The wireless operator for the Californian, the closest vessel to Titanic during the sinking, was asleep at the time. The Radio Act of 1912 mandated that every vessel with a certain number of passengers carry a wireless communicator and have a 24 hour wireless service.
• The International Ice Patrol was formed, headed by the U.S. Coast Guard, to monitor Atlantic icebergs and destroy them before they become a hazard for navigation.
• Most of Titanic’s crewmen didn’t know each other and were unfamiliar with a ship of Titanic’s size, and, furthermore, many crewmen were unsure of their duties and communication broke down during the evacuation. For example, the commanding officer on one side of Titanic allowed anyone to enter the lifeboats, but the commander on the opposite side strictly obeyed the “women and children first” creed. After the disaster, all crewmen would have to undergo training for emergency protocols, and lifeboat drills were now mandatory.
• Wireless warnings about a massive ice field in Titanic’s path should’ve been yielded but many were ignored by the officers and Marconi operators. It was not unusual for a passenger steamship to charge through the sea at excessive speeds as Titanic did at 22 knots (25.3 mph), and Capt. Smith had the ship turn west further south than the original route in hope of dodging any ice. White Star Chairman J. Bruce Ismay did encourage Smith to push Titanic’s speed to the limit, in part to best Titanic’s sister ship Olympic’s maiden voyage record. Also, Smith and the senior officers were convinced that an iceberg large enough to damage the ship should be spotted in plenty of time to take action and avert a collision; unfortunately, Titanic’s lookouts had misplaced their binoculars and a moonless night made spotting an iceberg even more difficult. Titanic’s crew remained confident of the ship’s durability in case the vessel did encounter or collide with ice, and iceberg collisions were infrequent enough as to not give the crew any sense of immediate danger. After the disaster, ships would slow down and pay more attention to wireless warnings.

Archibald Gracie, who swam from the ship and stayed alive by clinging onto overturned Collapsible Lifeboat B after the Titanic sank, died on Dec. 3, 1912, the third survivor to pass away after the disaster. He never overcame the trauma of the disaster, especially since he witnessed his good friend Clinch Smith disappear beneath the waves right in front of him as they fled to the stern. Gracie’s last words on his deathbed were, “We must get them into the boats. We must get them all into the boats.”

The Evening Post published an article titled “The Sad ‘Might Have Beens’ ” on April 19, which decried the lack of lifeboats, ineffective watertight bulkheads, other ships’ unmanned wireless services and Titanic’s excessive speed that voyage. “Recklessness,” “greed” and “ostentation” led to the disaster, the article declared. “But as against all these faults the qualities that dignify human nature appear in the sad story. … It is the only part of the terrible story in which satisfaction can be taken and it was fittingly climaxed with the strains of the ship’s band playing ‘Nearer My God to Thee,’ as she went down.” On April 22, the Daily Sketch of Britain published an article which read in part, “So now, what about the Titanic? Have you found your picture, your keepsake of this that was so terrible, and so great in its terror? If you have not, you must seek for one, for this is a thing which must not be forgotten. Read all you can about it until you may reap your harvest.” The Rev. Dr. Joseph Silverman said during a tribute sermon for the Strauses on April 20: “Men learn by experience. Many may take comfort in the thought that the same errors will not again be committed, and that there will be no great sacrifice of life in the future from the same causes. All the progress in the world has been brought about by suffering on the part of individuals. Thousands have died and many more thousands have suffered ill because of science. Millions have died on battlefields for the sake of liberty. Those on the Titanic when it went down must be added to the great roll of martyrs to progress.”

Presidential Second Term Mishaps

Only two years into his second term, President Bush squandered his post-inauguration bounce on a failed Social Security initiative; his administration was scorned for ineptitude in the aftermath of Hurricane Katrina; his vice president’s former chief of staff has been indicted; his party lost control of Congress; he had to withdraw a Supreme Court nominee; his first veto — regarding federal funding for embryonic stem cell research — was hugely unpopular; and the Iraq war has been losing popularity with the American people and politicians for months.

But Bush’s second-term blues are nothing new.

Virtually every president has had a much more difficult, scandal-ridden or disappointing second term compared to his first. Two presidents were even assassinated during their second terms, less than a year after being reelected: Abraham Lincoln in 1865 and William McKinley in 1901.

In the nineteenth century, Thomas Jefferson’s second term was marred by his endorsement of the Embargo Act of 1807, which severed all U.S. exportation to prevent going to war with or siding with France or Britain; the law ruined the economy and Jefferson’s reputation as a statesman. Ulysses S. Grant filled many government positions with army buddies, relatives of his wife and party cronies, which resulted in several scandals — the Credit Mobilier Scandal, the Whisky Ring Scandal and the Indian Frauds, to name a few — which were exposed in his second term. Despite not profiting from or participating in these scandals, they tarnished Grant’s legacy when he left office in 1877.

Woodrow Wilson narrowly won re-election in 1916, and his presidency went downhill from there. The former president of Princeton banked his entire international legacy on the success of the United States’ ratification of the Treaty of Versailles and entry into the League of Nations; neither of which happened. After spending months suffering from severe, paralyzing strokes, he left office in 1921 with his Democratic Party losing the presidential race the year before by a huge landslide. Another Democrat, Franklin D. Roosevelt, squandered his tremendous popularity at the start of his second term in 1937 when he proposed packing the Supreme Court with additional judges to counterbalance the conservative bloc, which had repeatedly struck down New Deal legislation as unconstitutional. Although only a chief executive as admired as FDR could’ve been so brazen to propose something so unwise and unstatesmanlike, Congress and the American people didn’t support the plan. Roosevelt would be elected to two more terms in the White House, but the court-packing plan damaged his political creditability and galvanized a Republican Party which had been blamed for the Depression.

In the midst of the Cold War, Harry Truman stunned the nation by defeating New York Gov. Thomas Dewey in 1948, but in a short four years China fell to the Communists, the Soviet Union tested its first atomic bomb and North Korea invaded its southern neighbor. Truman was sharply criticized for his operation of the war, and the Supreme Court ruled that he overstepped his authority as president by using the Army to seize coal mines during a labor strike. When he left office in 1953, Truman “couldn’t have been elected dogcatcher in his hometown of Independence” in Missouri, in the words of one historian. Like Roosevelt in the 1930s, Dwight Eisenhower was immensely popular during his presidency but after defeating Illinois Sen. Adlai Stevenson for the White House a second time in 1956, the former Allied supreme commander hit some speed bumps. Firstly, Eisenhower suffered a stroke. Then his humble, grandfatherly image took a beating when he didn’t act forcefully enough to enforce integration in the South and other civil rights matters. On the Cold War front, the Soviets launched Sputnik in 1957 and an American U2 spy plane was shot down over the Soviet Union in 1960. Also that year, the last of Eisenhower’s presidency, his vice president, Richard Nixon, lost a close election to Sen. John F. Kennedy in part because of Eisenhower’s reluctance to actively endorse Nixon and because of a nationwide economic recession.

Speaking of Nixon, his second term was probably the most devastating professionally of any president. Not only did evidence of illicit wiretappings, abuse of presidential power, a presidential “enemies list” and covert military operations overseas taint the Nixon White House, but the Watergate scandal and subsequent cover-up doomed Nixon’s presidency. Under threat of impeachment, in 1974 he became the first president to resign.

In the last generation, sour second terms have remained consistent but the presidents’ esteem remained intact. Ronald Reagan’s second term was preoccupied by the Iran-Contra Affair and although Reagan was never fully implicated, other administration and military officials were indicted or associated with the scandal. Reams of scandals plagued Bill Clinton’s presidency, and the Monica Lewinsky affair eventually led to his impeachment. But both Reagan and Clinton left office with considerable popularity, leaving history to fully judge the scandals which occurred during their tenures in the White House.

Why such a collapse? Why can’t presidents, who are usually reelected with landslide margins, maintain their leadership credentials and statesmanship value? Lame-duckness is one cause: there’s less urgency without the specter of reelection looming. Also, after several years in power, a president loses his novelty and political capital and his party traditionally loses seats in Congress during midterm elections. Alienated political and social minorities gain ground when the public loses interest or patience for a president’s platforms, rhetoric or character; Americans do have short attention spans, after all. The chief executive may also become more daring, arrogant and sloppy when it comes to managing the business of the nation, and scandal and misadministration becomes much more likely with the president’s staff, advisers and Cabinet if not the president himself.

After eight years in the Oval Office, the rope begins to unravel, and it’s ultimately up to history — and the American people who lived through and study that president and his administration — to determine if a chief executive deserves to be revered or reviled.

The First World War’s Impact on Free Speech Rights in the United States

Many measures were taken to ensure domestic security in the United States during World War I. Although President Woodrow Wilson was reelected in 1916 largely because of American objection to entering the European conflict, legislation and public policy was enacted to limit opposition to the war effort after war was declared on April 6, 1917. Because the execution of these laws was often for personal political gains and severely curtailed freedom of speech, protecting civil liberties became a new political agenda in American society and law.

The first serious federal legislation concerning the limitations of free speech during wartime in the United States was the Alien and Sedition Acts passed by Congress in 1798. This was initiated by “the impending war with France, the spread of revolutionary doctrines by foreigners in our midst, and the spectacle of the disastrous operation of those doctrines abroad …”[1] The Alien Act allowed the president to deport immigrants viewed as a threat to national security. The Sedition Act prohibited false, scandalous and malicious writings against the government or the president. These laws expired in 1800 with only one alien deported and 10 people imprisoned for violating the acts. Once Thomas Jefferson became president in 1801, he released the incarcerated seditionists, who were mostly journalists, and reimburse them for the fines they paid.

To save the union, President Abraham Lincoln went beyond the Constitution at the start of the Civil War. He suspended the writ of habeas corpus, closed hostile Northern newspaper and telegraph offices, and imprisoned secessionist legislators without Due Process safeguards. Anywhere between 13,000 and 38,000 people were arrested arbitrarily, imprisoned without trial and released without explanation.[2]

The concept of what defines civil liberty in the United States at the turn of the twentieth century was very different than what is considered today. A majority of Americans “held that such liberties were only protected for those citizens who had demonstrated … that they were prepared to utilize those freedoms in positive and constructive ways.”[3] In essence, only “good people,”[4] which excluded virtually all minority groups, deserved to have their rights secured. Immigrants were discriminated, women were not enfranchised, and racial segregation was in full force. However, even before war was declared, “working-class Americans prized civil liberties, valued international solidarity, stressed class division, and even embraced notions of cultural pluralism.”[5]

Attorney General Thomas Gregory commented in November 1917 about the war’s critics, “May God have mercy on them, for they need not expect none from an outraged people and an avenging government.”[6] This was the legacy of the government’s position on civil rights during America’s involvement in the Great War. Some of the most notable political agitators of their day, including Socialists Eugene V. Debs and Victor L. Berger, anarchist Emma Goldman, Communists William Haywood and Scott Nearing, and civil libertarian Roger Nash Baldwin, were indicted for their opposition to the war and new public policy as well as being arrested for advocating their right to express their beliefs. The public and federal government particularly denounced women who were war opponents. Activists such as Goldman, Rose Pastor Stokes, Kate Richards O’Hare and Dr. Marie Equi faced prosecution for being “unnatural and subversive,”[7] traits inconsistent with perceived feminine virtues of the day.

The first censorship efforts before Congress declared war in 1917 were instigated through the War and Navy Departments to ensure intelligence secrecy. War Secretary Newton D. Baker created the Bureau of Information headed by Maj. Douglas MacArthur on June 9, 1916, within the department to be the sole source from which the press could receive its information. Baker wrote Edwin Y. Webb, chairman of the House Committee on the Judiciary, on Aug. 11, “In this country the proper legislation authorizing such control of a publication should be adopted when, as now, the country is at peace.”[8]

President Wilson believed, like many politicians in general, that free speech rights in wartime significantly differed from peacetime. He wrote to Socialist Max Eastman of The Masses in September 1917,

I think that a time of war must be regarded as wholly exceptional and that it is legitimate to regard things which would in ordinary circumstances be innocent as very dangerous to the public welfare, but the line is manifestly exceedingly hard to draw and I cannot say that I have any confidence that I know how to draw it.[9]

The single most outspoken entity opposing the declaration of war against the Central Powers was the American Socialist Party, which proclaimed opposition to U.S. military intervention during a conference in St. Louis in summer 1917. The party was a political minority in America at that time, and President Wilson even scorned it for its views, writing to Secretary of State Robert L. Lansing in May 1917, “… I do not like the movement among the Socialists to confer about international affairs.”[10] Wilson, however, wrote to Lansing that he believed mainstream America would disregard members’ “almost treasonous utterances.”[11] The president concluded, “My own view is, that they will make themselves either hated or ridiculous.”[12] Ironically, 12,000 people joined the Socialist Party in 1917 because of its “staunchly antiwar pronouncement.”[13]

The International Workers or the World, or “Wobblies,” became a victim of war hysteria during this time although IWW President William “Big Bill” Haywood himself said that “neither he nor his men were attempting to obstruct the war in any way.”[14] A radically communist establishment, the Wobblies “called for the overthrow of the capitalist political and economic order and its replacement with a worker’s republic …”[15] Wobblies already faced existing prejudice not only among American society but also the federal government. An Immigration Bureau report compiled in late 1917 summarized the Wobblies as “scum of the earth …”[16] Four-time presidential candidate and co-founder of the American Socialist Party Eugene V. Debs commiserated with the Wobblies. He wrote in the February 1918 issue of the International Socialist Review that nearly all Americans viewed the IWW under Haywood as “a gang of traitors in the pay of the bloody Kaiser,”[17] which, along with the Socialists, could never have a fair and unbiased trial when indicted for their political agitation.

On April 14, 1918, President Wilson, under executive order, created the Committee on Public Information and appointed journalist George Creel its chairman. The Complete Report of the Chairman of the Committee on Public Information, or “Creel Report,” published in 1920 summarized Creel’s opinion of the committee’s objective: “… our task was to devise machinery with which to make the fight for loyalty and unity at home, and for the friendship and understanding of the neutral nations of the world.”[18] Creel insisted in his 1920 book How We Advertised America that, “In no degree was the Committee an agency of censorship [or] a machinery of concealment or repression. … At no point did it seek or exercise authorities under those was laws that limited the freedom of speech and press.”[19] What the committee did was encourage voluntary press censorship concerning military intelligence and other sensitive information. Contrary to popular historical misconception, the Post Office Department, not the Committee on Public Information, was the leading governmental organization enforcing censorship during World War I.

When President Wilson asked Congress for a declaration of war against Germany on April 2, he discussed loyalty among German-Americans. He believed that most would remain faithful to the United States, but he warned: “If there should be disloyalty, it will be dealt with with a firm hand of stern oppression; but, if it lifts its head at all, if will lift it only here and there without countenance except from a lawless and malignant few.”[20] Congress responded to Wilson’s call for a “firm hand of stern oppression” by passing the Espionage Act on June 15. The law declared,

“Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation of [the armed forces] or to promote the success of its enemies, … cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the [armed forces], … or shall willfully obstruct the recruiting or enlistment service of the United States” could be punished with a fine of up to $10,000 and up to 20 years imprisonment.[21]

With this act, Postmaster General Albert S. Burleson was vested with “vast powers for the suppression of critical opinion.”[22] Any form of “subsidiary press,” or second class mailing, was subjected to censorship or banned use of the mail by Burleson’s office. Yet, prejudice already existed within the Post Office Department, with Burleson writing to University of Chicago Professor S.H. Clark that “no socialist paper would be barred from the mails unless it contained treasonable or seditious matter. The trouble, however, the Postmaster General was quoted as saying, ‘is that most socialist papers do contain this matter.’ ”[23] It is because of partisan motives such as this that Burleson and his underlings often overreached the powers granted to them by the Espionage Act.

For example, Burleson restrained an issue of the Public which urged that more federal revenue be collected with loans instead of taxes. He suppressed Lenin’s Soviets at Work, “a purely economic pamphlet, although we were not at war with Russia.”[24] The Sept. 14, 1918, issue of The Nation was barred from the mails after editor Oswald Garrison was notified that the restriction was due to an article criticizing American Federation of Labor President Samuel Gompers. Post Office Solicitor William Lamar regarded Gompers as an important domestic ally for the war effort and stated, “While this war is on, we are not going to allow any newspaper in this country to attack him.”[25] Higher officials in the Wilson Administration later overruled Lamar and permitted the issue to be mailed. Movie producer Robert Goldstein created the film Spirit of ’76, which graphically portrayed British soldiers slaughtering Americans in certain scenes. He was arrested in 1917 for producing the picture because it could potentially create antagonism toward America’s ally in Europe. After Goldstein was found guilty, Judge Benjamin Bledsoe said creating friction between the United States and its allies is not protected speech because to do so “weakens our efforts, weakens our chance of our success, impairs our solidarity, renders less useful the lives we are giving, to the end that this war may soon be over and peace may soon become a thing substantial and permanent with us.”[26] Goldstein’s judicial appeal failed, and he was sentenced to 10 years in prison.

Following the Espionage Act was the Trading-with-the-Enemy Act, approved by Congress on Oct. 6. Intended to monitor international communication within the United States, the law gave the postmaster general “almost absolute censorship powers over the American foreign-language press.”[27] All foreign-language newspapers discussing the government, the war, or enemy nations were required to submit a translated version to the Post Office Department. The president had the power, however, to issue a special permit to periodicals thought not to be a threat. The day the Trading-with-the-Enemy act was passed by Congress, Wisconsin Senator Robert M. La Follette Sr. addressed the chamber on the pressing issue of civil liberties in wartime. Saying he amassed several newspaper clippings in which he and other politicians were defamed as traitors for their stance on the war, La Follette recognized that certain freedoms might not be the same in peacetime as in war but a citizen must have “his right to control his government” protected.[28] “He must beware of those precedents in support of arbitrary action by administrative officials, which excused on the plea of necessity in wartime, become the fixed rule when the necessity has passed and normal conditions have been restored.” La Follette argued that freedom of political discourse is a fundamental function of a representative government and quoted several speeches on the topic of civil rights in wartime to buttress his position; if Congress has the right to declare war, then Americans have the right to discuss it, he argued. “More than all, the citizen and his representative in Congress in time of war must maintain his right of free speech,” he said. “More than in times of peace it is necessary that the channels of free public discussion of governmental policies shall be opened and unclogged.”[29] President Wilson signed an executive act creating the Board of Censorship on Oct. 12. This body was comprised of representatives from the Departments of War, the Navy, Post Office, and War Trade Board, with Creel appointed its chairman. One Seattle censor commented that the board should be kept informed about Bolsheviks, Wobblies, Socialists, “or other organizations whose aims are antagonistic to this government.”[30]

Section 6 of the Criminal Code recognized any IWW strike a seditious conspiracy. Comprised mostly of harvesters, lumberjacks and miners, the Wobblies often carried out “potentially crippling” strikes in Western states during the war.[31] Some 1,000 striking Wobblies were forcefully expelled from Bisbee, Arizona, in summer 1917 and stranded in the desert. Governor Thomas E. Campbell asked for federal assistance to ensure that the mining industry could continue to operate in his state. President Wilson wrote Campbell on July 12 expressing his fears of local vigilantism: “… may I not respectfully urge the great danger of citizens taking the law in their own hands as you report their having done. I look upon such action with grave apprehension. A very serious responsibility is assumed when such precedents are set.”[32] An immigration committee representing several federal offices met on Jan. 14, 1918, and decided unanimously to detain rather than try alien Wobblies believed to be “undesirable” or “pro-German in their activity.”[33] So many Wobblies were arrested in Western Washington State that the Immigration Bureau was offered a building large enough to hold 1,500 prisoners as well as an agricultural compound to be used as an internment camp. “Big Bill” Haywood himself was indicted for violating the Espionage Act and was sentenced to 20 years in prison in September 1918. Judge Kenesaw Mountain Landis stated during the sentencing, “When the country is at peace, it is a legal right of free speech to oppose going to war and to oppose even preparation for war. But once war is declared this right ceases.”[34]

Passed by Congress on May 16, 1918, the Sedition Act amended the Espionage Act, making it illegal, among other things, to “… willfully utter, print write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or Constitution of the United States, or the military or naval forces of the United States …”[35] This law “went further than any previous federal legislation in its negation of the essential elements of the Bill of Rights …”[36]

Federal legislation was not alone in curtailing civil liberties during World War I. The American public took an active role suppressing the rights of war opponents, and President Wilson feared some Americans were going “war mad.”[37] States banned the speaking of German, books about Germany were destroyed, and sauerkraut was renamed “liberty cabbage.” In a much more serious incident, 500 residents of Collinsville, Illinois, bound German immigrant Robert Prager with the Stars and Stripes, dragged him through the streets, and lynched him,[38] but the jury acquitted his killers declaring that what they had done was “patriotic murder.”[39] Overzealously patriotic groups that often took the law into their own hands included the American Defense Society, American Protective League, and the Sedition Slammers. Wobblies became particular targets of animosity by such organizations: three were hanged, others were hanged and cut down just before death; 64 were tarred and feathered; 55 were kidnapped and whipped; and 1,100 were forcibly removed from cities, counties or states.[40] Some of these numbers overlap, as certain people were tormented repeatedly. Congress eventually passed the Sedition Act in part to protect pacifists and protesters from vigilantism. Yet, in the words of World War I era Harvard Law Professor Zechariah Chafee, “Incarceration for a period of twenty years seems like a very queer kind of protection.”[41]

A co-founder of the American Socialist Party in 1901, Austrian-born Victor L. Berger of Milwaukee, Wisconsin, a predominately German-American and socialist city, became in 1911 the first Socialist elected to the House of Representatives. He served only one term and left politics for the time being to continue work on the Milwaukee Leader, which was barred from the mails in 1917 for violating the Espionage Act, an action upheld by the U.S. Supreme Court. Berger’s pacifism made him enemies not only among his former congressional colleagues but also in the White House. President Wilson refused to receive Berger in July 1917 saying that the congressman’s “revolutionary temper”[42] dramatically differed from conventional Socialist Party attitudes. Wilson wrote, “[Berger’s] recent actions and utterances have convinced me that he is not to be trusted in any sense a friend of the Government …”[43] While running for another term in the House in 1917, Berger and four other Milwaukee Socialists were indicted for violating the Espionage Act. When all five were found guilty two years later, Berger addressed Judge Kenesaw Mountain Landis, the same judge from Haywood’s trial, saying, “If I am guilty, if my comrades are guilty, then every member of the Socialist Party is guilty. Every man who voted the Socialist ticket is guilty. Every man who has criticized the administration on the war is guilty.”[44] Berger and his colleagues were sentenced to 20 years in Leavenworth.

Before his conviction in February 1919, however, Berger was elected in a second race to Congress by his district on Nov. 5, 1918. The House formed a special committee — the Special Committee of Congress Appointed to Investigate His Right to a Seat in the House — in September 1919 to investigate the possibility of denying Berger his congressional seat because of his felony conviction. The Socialist’s animosity for what had happened to his newspaper and himself was apparent when he addressed the committee on Sept. 15: “The law under which suppression of free speech and of free press was enforced is a flat denial of rights guaranteed every citizen by the Constitution of the United States.”[45] The committee concluded on Oct. 24 that Berger was ineligible to take his seat because, in the words of Chairman F.W. Dallinger, he “became the head and front of an organized conspiracy to hinder, obstruct, and embarrass the Government in its fight for existence … [T]he men who fought for their country in the great war expect it; the entire country expects it.”[46] With all but one vote, the House voted to exclude Berger from serving.

Despite his conviction and exclusion, Berger’s district again voted him into office. All but six representatives voted on Jan. 10, 1920, to exclude Berger from serving again. “With the war now sinking further into the past, the only basis upon which the exclusion stood was hysteria.”[47] Berger became the only person in U.S. history elected to Congress to have been excluded twice. The Supreme Court overturned Berger’s conviction on Justice Louis D. Brandeis’s insistence on a technicality in 1921, and Berger was soon thereafter reelected to his seat without opposition in the House.

Socialist Charles Schenck was arrested for violating the Espionage Act in August 1917 for distributing leaflets that discouraged draftees from enlisting in the armed forces. His arrest and appeal prompted the first in a series of Supreme Court decisions concerning government action during World War I. The court ruled unanimously to uphold his conviction in Schenck v. U.S. on March 3, 1919, with the justices believing the Espionage Act to be within the bounds of constitutional safeguards and congressional authority. Justice Oliver Wendell Holmes’s decision in Schenck included the “clear and present danger” legal test, writing that such jeopardous speech “will bring about the substantive evils that Congress has a right to prevent …”[48] With that, Holmes coined the cliché, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”[49]

Exactly one week after the Schenck ruling, the Supreme Court upheld Eugene Debs’s arrest for violating the Espionage Act in Debs v. U.S. Debs was prosecuted after delivering a speech in Canton, Ohio, on June 16, 1918, in which he condemned the federal government’s efforts to limit civil liberties, beginning his address with, “I realize that, in speaking to you this afternoon, there are certain limitations placed upon the right of free speech.”[50] Debs’s only defense at trial that September was a direct appeal to the jury. In his speech, the Socialist said, “I believe in the Constitution of the United States. Isn’t it strange that we Socialists stand almost alone today in defending the Constitution of the United States?”[51] and then recited the First Amendment. Debs was convicted on Sept. 12 and was sentenced two days later to 10 years in federal prison. Justice Holmes again defended the Espionage Act in Debs. Citing Schenck, the decision ended with, “The Government presents a strong argument from the history of the statutes that the instruction was correct and in accordance with the established legislative usage.”[52] Despite his ruling, Holmes wrote his friend Sir Frederick Pollock about Debs, “Now I hope the President will pardon him and some other poor devils with whom I have more sympathy.”[53] Despite his incarceration, Debs ran for president for the fifth and final time in 1920, winning more than 900,000 votes.

Holmes’s decisions limiting free speech in Schenck and Debs professed a government interest in public safety during wartime. “This view lacked any well-developed conception that speech might serve broader social interests, interests which would be disadvantaged if denied ideas which such speech contained.”[54] Professor Zechariah Chafee believed the Schenck and Debs decisions flawed and contradictory to First Amendment principles. He was inspired by Espionage Act cases stemming from Southern District of New York Judge Learned Hand’s criticism of such legislation in his decisions. In his 1920 book Freedom of Speech about civil right infringements during the war, Chafee denounced Holmes’s rulings, saying that “… bad tendency and presumed intent have been the tests of criminality, tests which this article has endeavored to prove wholly inconsistent with freedom of speech, and any genuine discussion of public affairs.”[55] Chafee and Hand met with Holmes after Debs to discuss the role of the First Amendment in American society. Because of this dialogue, Holmes began taking a more sympathetic approach toward civil liberties during his tenure on the Supreme Court. Although concurring with his colleagues in Schenck and Debs, Justice Brandeis regretted his decision, writing to Harvard Law Professor Felix Frankfurter, “I had not then thought the issues of speech out — I thought at the subject, not through it.”[56] A politically liberal Wilson appointee and the Supreme Court’s first Jewish justice, Brandeis began to consider free speech a fundamental right in American democracy, saying, “… only through such differences do we secure the light and fuller understanding which are necessary to a wise decision …”[57] Subsequent decisions saw Holmes and Brandeis trying to limit the “clear and present danger” doctrine. Dissenting in another Espionage Act case, Schaefer v. U.S. in 1920, the two justices defied Schenck with Brandeis ruling,

This is a rule of reason. Correctly applied, it will preserve the right of free speech both from suppression by tyrannous, well-meaning majorities and from abuse by irresponsible, fanatical minorities … The constitutional right of free speech has been declared to be the same in peace and in war.[58]

Communist People’s Council Chairman Scott Nearing, who was also indicted for violating the Espionage Act, abhorred what he saw as an attack on freedom of speech in light of Schenck and Debs. “The masters in all ages,” Nearing wrote, “have put men like Debs in jail because it is the truth-teller that the masters fear most.”[59] Like Eugene Debs in court, Nearing quoted historical precedence and the First Amendment in defense of his leftist beliefs. He wrote,

We must conclude that neither the Courts of the United States, nor the Constitution of the United States can be relied upon to guarantee the American people the right of free speech. Thus freedom of discussion is ended. Democracy in the United States is dead. The Supreme Court … wrote its epitaph.[60]

Former Socialist Congressman Victor Berger’s newspaper, the Milwaukee Leader, was denied use of second-class mail services for violating the Espionage Act shortly after the law was enacted. The Supreme Court upheld Postmaster General Albert Burleson’s action in Milwaukee Social Democratic Publishing Co. v. Burleson in 1921. Justice John H. Clarke’s opinion for the majority defended the Post Office Department by declaring that use of second-class mail is a privilege, not a right, and, therefore, could be restricted should a publication fail to obey federal law. Justices Holmes and Brandeis, with their more liberal change of heart, dissented, believing Berger’s free speech and press rights to have been violated. Brandeis was troubled with the fact Berger had never actually been convicted under Due Process protections for his paper’s alleged Espionage Act violation and that Burleson’s censorship powers were endowed with “vague and absolute authority.”[61] With Holmes, Brandeis considered use of second-class mail a right and not a privilege. Holmes bitterly scrutinized the Espionage Act’s unspecific and broad powers of censorship over the press. If the postmaster has the power to kill a newspaper by barring it from the mail, Holmes wrote, “ ‘Such a practically despotic power’ destroys free speech, since ‘the use of the mails is almost as much a part of free speech as the right to use our tongues.’ ”[62]

Another dynamic political figure in World War I America opposed to the war was the Russian-born anarchist Emma Goldman. She started her crusade against the war effort even before Congress declared war through her publication Mother Earth. In March 1917, she wrote, “I for one will speak against war so long as my voice will last, now and during the war.”[63] Goldman and her supporters believed the Selective Service Law a violation of the Thirteenth Amendment’s prohibition of “involuntary servitude” as well as “the ultimate affront to the individual conscience.”[64] To protest the initiative, Goldman formed the No-Conscription League, which held its first demonstration in New York City the day the act was signed into law. The No-Conscription League protests prompted U.S. Attorney H. Snowden Marshall of New York to write Attorney General Thomas Gregory about draft opponents, “I believe that an exhibition of force at the outset will have a salutary effect upon all those who contemplate resistance …”[65] Federal Marshall Thomas McCarthy informed The New York Times on June 12, “I will arrest this Goldman woman if she organizes more meetings.”[66] He made good on this promise, arresting both Goldman and her colleague Alexander Berkman just days later, indicting them on charges of violating the Selective Service Law by forming a “conspiracy to induce persons not to register.”[67]

Both were convicted on July 9, and Goldman addressed Judge Julius Mayer: “… we love America … we love the dreamers and the philosophers and the thinkers who are giving America liberty.”[68] Unmoved, Mayer replied, “Individual opinion might still be fully expressed, and proper agitation for the repeal of such a law continue, but the law itself henceforth must be obeyed.”[69] Goldman and Berkman were soon after denaturalized and jailed in federal prison. On Dec. 21, 1919, the two anarchists were deported with 249 other aliens to Russia. The Supreme Court had since ruled in December 1917 that the Selective Service Law did not violate the Constitution.

The most lasting testament to the protection of civil rights because of infringements during World War I was the formation of the American Civil Liberties Union in 1920. In time, the ACLU would be second only to the Justice Department in arguments before the Supreme Court. In an article titled “Despotism During the War and Since Makes Civil Liberties Union a Necessity” in March 1926, Rep. Victor Berger wrote, “I sympathize deeply with the work of the American Civil Liberties Union. Every citizen who believes in freedom, and who knows something about it — must necessarily sympathize with its work.”[70]

There were partisan civil liberties organizations in existence before the ACLU, including the NAACP in 1909, the Anti-Defamation League in 1913, and the American Jewish Conference 1916. The ACLU, however, has worked to defend the civil liberties of all Americans without any ethnic, racial, or political affiliation. The origin of the ACLU can be traced back to even before war was declared in 1917. Comprised mostly of German and Bolshevik sympathizers, the anti-conscription, antiwar American Union Against Militarism was founded in December 1915. The Collegiate Anti-Militarism League, consisting of radically leftist college professors, was also formed that year. During a Subcommittee of the Committee on the Judiciary hearing in January 1919, Senator William H. King remarked, “It is a remarkable thing … that in these universities there has been a festering mass of pure atheism and the grossest kind of materialism, and teachings destructive to our form of government and the civilization which a Christian nation recognizes.”[71]

More radical AUAM members eventually branched off from the association and founded the National Civil Liberties Bureau on Oct. 1, 1917. Declaring, “No fight for civil liberty ever stays won,”[72] Roger Nash Baldwin became the NCLB’s first director. In addition to the AUAM and NCLB, Socialist Frank P. O’Hare founded the Liberty Defense Union in early 1918. Initial members included Baldwin, Nearing and other distinguished leftist figures. O’Hare wrote to Eugene Debs in February 1918 seeking his support: “The purpose of this organization will be to raise the necessary funds and to promote the necessary publicity for the defense and succor of all the comrades who are being prosecuted for the exercise of the rights of free speech, free assemblage and free press.”[73]

Baldwin was one of 64,693 persons who made conscientious objector claims to the War Department during World War I, but only about 4,000 of them were actually exempted from military service.[74] The United States had conscientious objectors during wartime dating back to the Civil War, but only objectors who belong to a well-established religious sect were recognized by the federal government. Baldwin, a civil libertarian, believed conscientious objectors should not be judged on religious premises alone. Besides lesser-accepted religious sects, such as Jehovah’s Witnesses, he considered German-Americans refusing to be drafted to kill their countrymen in the motherland and non-religious pacifists morally opposed to war just as equally credible.

Baldwin was arrested on Oct. 9, 1918, for deliberately failing to obey a summons to appear at his local draft board for a physical examination, a violation of the Selective Service Law. The premier NCLB director “regarded conscription as antithetical to all democratic and Christian tenets.”[75] Baldwin said in court, “I am opposed to this and all wars. I do not believe in the use of physical force as a method of achieving any end, however good.”[76] Judge Julius Mayer, the same judge from Goldman’s trial, said after Baldwin was found guilty, “A republic can last only so long as its laws are obeyed.”[77] Baldwin was sentenced to one year in prison.

Serving only eight months of his sentence, Baldwin was released and resumed his duties as NCLB director. He also joined the IWW, which would further tarnish Baldwin and the NCLB. The association was reorganized and officially became the American Civil Liberties Union in January 1920 with members “who [stood] on general principle of freedom of expression.”[78] The New York legislature assembled the Lusk Committee in February to investigate the ACLU, and the subsequent Lusk Report “established the standard rightwing attack on the ACLU and free speech: that the defense of free speech was the same thing as advocating violent revolution itself.”[79]

One of the ACLU’s first tasks was to petition the federal government to release Debs and other political prisoners from imprisonment. Baldwin wrote Debs in November 1921 saying that the ACLU would try to persuade the general public to release him “in order to make clear to the administration the extent of the sentiment for doing the fair thing now by granting a general amnesty of war cases.”[80] President Warren G. Harding pardoned Debs that year without restoring his citizenship status. A total of 1,055 of the 2,200 persons prosecuted by the Justice Department for opposition to the war were convicted.[81] Rep. Berger pointed out in 1926 that “not a single citizen was ever convicted of being a paid German spy — and not a citizen was ever found guilty of trying to find out military secrets.”[82]

In conclusion, all the federal legislation and war hysteria in the United States during World War I was in response to a threat that did not actually exist. When public policy was executed, the action was more often part of partisan agendas by those who were obligated to enforce the law. It is because of this that defending civil rights became a recognized social and judicial concern for all Americans in times of peace and war.

---

[1] Chafee, Zachariah. Freedom of Speech. (New York, 1920), pg. 29.

[2] Mock, James R. Censorship 1917. (New York, 1972), pg. 8.

[3] Murphy, Paul L. World War I and the Origins of Civil Liberties in the United States. (New York, 1979), pg. 40.

[4] Ibid.

[5] Zieger, Robert H. America’s Great War: World War I and the American Experience. (Lanham, 2000), pg. 81.

[6] As quoted in Ibid., pg. 197.

[7] Ibid., pg. 137.

[8] Mock, Op Cit., pg. 42.

[9] Baker, Ray Stannard, ed. Woodrow Wilson Life and Letters, Vol. VII. (New York, 1939), pg. 273.

[10] Ibid., pg. 65.

[11] Ibid.

[12] Ibid.

[13] Cottrell, Robert C. Roger Nash Baldwin and the American Civil Liberties Union. (New York, 2000), pg. 58.

[14] As quoted in Murphy, Op Cit., pg. 171.

[15] Zieger, Op Cit., pg. 117.

[16] Preston, William. Aliens and Dissenters. (Cambridge, 1963), pg. 165.

[17] Debs, Eugene V. Writings and Speeches of Eugene V. Debs. “The I.W.W. Bogey.” (New York, 1948), pg. 407.

[18] The Creel Report. (Washington, 1920), pg. 1.

[19] Creel, George. How We Advertised America. (New York, 1920), pg. 4.

[20] As quoted in Scheiber, H.N. The Wilson Administration and Civil Liberties, 1917-1921. (Ithaca, 1960), pg. 18.

[21] As quoted in Chafee, Op Cit., pg. 42.

[22] Scheiber, Op Cit., pg. 19.

[23] Mock, Op Cit., pg. 145.

[24] Chafee, Op Cit., pg. 107.

[25] As quoted in Scheiber, Op Cit., pg. 32.

[26] Mock, Op Cit., pg. 181.

[27] Murphy, Op Cit., pg. 80.

[28] La Follette Sr., Robert M. “Free Speech in Wartime” (1917). U.S. Senate Congressional

Record, pp. 786-787. Retrieved Nov. 16, 2005, U.S. Senate: Art & History, Classic Senate Speeches database.

[29] Ibid.

[30] Mock, Op Cit., pg. 130.

[31] Cottrell, Op Cit., pg. 58.

[32] Baker, Op Cit., pg. 161.

[33] Preston, Op Cit., pg. 163.

[34] As quoted in Murphy, Op Cit., pg. 173.

[35] As quoted in Scheiber, Op Cit., pg. 19.

[36] Zieger, Op Cit., pg. 197.

[37] The Great War and the Shaping of the Twentieth Century, Episode 6: Collapse, 1996.

[38] Murphy, Op Cit., pg. 128.

[39] The Great War, Op Cit.

[40] Markmann, Charles Lam. The Noblest Cry. (New York, 1965), pg. 35.

[41] Chafee, Op Cit., pg. 46.

[42] Baker, Op Cit., pg. 171.

[43] Ibid.

[44] As quoted in Berger, Victor L. Voice and Pen. (Milwaukee, 1929), pg. 11.

[45] Ibid., pg. 603.

[46] Chafee, Op Cit., pg. 333.

[47] Miller, Op Cit., pg. 217.

[48] Schenck v. U.S., 249 U.S. 47 (1919).

[49] Ibid.

[50] Debs, “The Canton, Ohio Speech.” Op Cit., pg. 417.

[51] Nearing, Scott. The Debs Decision. (New York, 1919), pg. 24.

[52] Debs v. U.S., 249 U.S. 211 (1919).

[53] Lerner, Max, ed. The Mind and Faith of Justice Holmes. (Boston, 1943), pg. 299.

[54] Murphy, Op Cit., pg. 267.

[55] Chafee, Op Cit., pg. 91.

[56] Strum, Philippa, ed. Brandeis on Democracy. (Lawrence, 1995), pg. 209.

[57] Ibid.

[58] Schaefer v. U.S., 251 U.S. 466 (1920), dissenting.

[59] Nearing, Op Cit., pg. 42.

[60] Ibid., pg. 40.

[61] Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407 (1921), dissenting.

[62] Lerner, Op Cit., pg. 314.

[63] Drinnon, Richard. Rebel in Paradise: A Biography of Emma Goldman. (Chicago, 1961), pg. 186.

[64] Ibid.

[65] Ibid., pg. 187.

[66] As quoted in Ibid.

[67] Ibid.

[68] Ibid., pg. 194.

[69] Ibid.

[70] Berger, Op Cit., pg. 228.

[71] As quoted in McIlhany, William H. The ACLU on Trial. (New York, 1976), pg. 173.

[72] Markmann, Op Cit., pg. 3.

[73] Constantine, J. Robert, ed. Letters of Eugene V. Debs, Vol. II, 1913-1919. (Chicago, 1990), pg. 375.

[74] Thomas, Norman. The Conscientious Objector in America. (New York, 1923), pg. 81.

[75] Cottrell, Op Cit., pg. 86.

[76] Ibid.

[77] Ibid., pg. 88.

[78] As quoted in Markmann, Op Cit., pg. 39.

[79] Walker, Samuel. In Defense of American Liberties: A History of the ACLU. (Carbondale, 1990), pg. 43.

[80] Constantine, J. Robert, ed. Letters of Eugene V. Debs, Vol. III, 1919-1926. (Chicago, 1990), pg. 270.

[81] As quoted in Scheiber, Op Cit., pg. 63.

[82] Berger, Op Cit., pg. 234.

A History of the Modern American Church-State Separation Movement

Public education and freedom of conscience were both a cornerstone of the new American Republic. As American society diversified and expanded, a new emphasis on individual liberty took root, which often conflicted with tradition and majoritarian democracy. The current constitutional doctrine of spiritual freedom spawned the modern American church-state dialogue but was an accumulation of generations of progress with the roll of religion and education with public schools.

Civil liberties were nonexistent in public schools for many generations because of “the intentions of public schools” to assimilate immigrants with “no more effective medium” to transform aliens into Americans.[1] Robert L. Maddox, a Baptist minister and former executive director of Americans United for Separation of Church and State, observed in his 1987 book Separation of Church and State that “it is no wonder” most battles over church-state separation have occurred over religion in public schools because of America’s devotion and emphasis on public education and values.[2] Humanities professor Robert S. Alley wrote in 1994 that democracy can also pose a “theological problem” for Christian Americans:

Even for many Christian citizens who have come to terms with the diversity of a democratic state, there is a lingering dogma of exclusivism that lies dormant. Protestants and Catholics alike tend to view the historical process as in some way controlled by the deity. Thus the nation becomes in some respect the handmaid of God.[3]

The “American dilemma” of a pluralist society with a numerically dominate religious sect can “threaten the dissenting beliefs of other religions and of the nonreligious,” Harvard scholar Ronald F. Thiemann concluded. “While we proclaim the theoretical separation of religious and political institutions, we often encourage their intermingling in practice.”[4]

No one person or event triggered the modern focus on students’ rights or church-state separation as it pertains to public schools, but the movement did not start in the twentieth century. Conflict over funding among “quarreling and envious religious sects” prompted the New York state legislature in 1842 to establish a public school system in which no “religious sectarian doctrine or tenet should be taught, inculcated, or practiced.”[5] The Bible Riots in Philadelphia in May 1844 was the accumulation of years of resentment and hostility between Protestants and Catholics. Fighting erupted on May 6 between the rival sects in reaction to a new state law that the Bible be used as a textbook in public schools, although most had been doing it for years anyway. The Protestant King James version often contradicted or even offended Catholics and Catholic interpretation — some of these Bibles even referred to the pope as the anti-Christ.[6] Protests by local Catholic clergy prompted Protestant riots, in which several homes were vandalized, several residents were injured and a handful were killed.

More progressive measures took root later in the nineteenth century to keep church and state separate. Connecticut had ceased all denominational instruction in public schools by 1850 — although Bible recitation, prayers and hymns remained — and by 1855, Massachusetts had forbid state funding for sectarian schools. President Ulysses S. Grant promoted statutes for prohibitions on public funding for sectarian schools, and a plank for the 1876 Republican Party advocated a constitutional amendment banning public money used for sectarian education.[7] Although the measure failed at the federal level, several states adopted similar provisions for their constitutions, which were collectively known as “Blaine Amendments,” named for the original sponsor, U.S. Senator James G. Blaine. Driven in part by anti-Catholic sentiment and in part “to ensure that there would be universal, free and non-sectarian public education,” as law professor Steven K. Green explained,[8] 37 state constitutions would eventually include explicit language forbidding use of public funds for sectarian schools. Protestant-leaning education statutes resulted in the formation of many parochial schools. Also, every state in the union had mandatory public school attendance laws by the turn of the century.

Dayton, Tennessee, became the center of the universe during a hot July in 1925 with the focus on a science teacher named John Thomas Scopes. A wave of progressivism and modernity in the Roaring Twenties was countered with a conservative backlash, especially in the South. Several Southern states endorsed statutes that buttressed religious teachings and relegated Darwinian science of evolution. Conservative attacks on Darwin were rooted with more than dogmatic religious matters because such traditionalists saw evolution, and the biological synthesis of evolution science called eugenics, “as the damnable consequence of Darwinian thinking: First assume that humans evolved from beasts and treat them like cattle,”[9] professor Edward J. Larson explained in Summer for the Gods in 1997. Tennessee’s Butler Act outlawed any public school educator “to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals,”[10] although the governor saw it as a symbolic law and didn’t expect it to be strictly enforced.[11] Teachers, as agents of the state, were expected to obey the law, even though evolution was mentioned in the state-approved biology textbooks. The American Civil Liberties Union — which had been formed only five years earlier — saw such statutes as an unconstitutional attack on free speech and sought litigation. Scopes, who had been chosen by pro-Darwin town officials to be the defendant, substituted for a biology class where he mentioned basic evolutionary concepts. Two of the most famous legal minds in the nation represented the two legal parties: William Jennings Bryan, a fundamentalist Christian who believed the literal interpretation of Scripture, and Clarence Darrow, an agnostic and lawyer who was known for his lost-cause cases. Bryan, a former secretary of state and three-time presidential candidate, had argued for years that Darwinian evolution disqualifies as science and only breeds atheism and violence, especially in the wake of World War I and the rise of Bolshevism. “To destroy the faith of Christians and lay the foundations for the bloodiest war in history would seem enough to condemn Darwinism,”[12] Bryan argued. Darrow wrote about his nineteenth-century education, “From the first grade to the end of the college course [students] were taught not to think, and the instructor who dared to utter anything in conflict with ordinary beliefs and customs was promptly dismissed, if not destroyed.”[13] The prosecution believed the truth of Darwin was irrelevant and “asserted the right of a state to cultural autonomy. … The defense, on the other hand, wished to show that the law not only was unconstitutional, but also flew in the face of accepted scientific knowledge.”[14] On the last day of testimony, Darrow questioned Bryan on the witness stand about the contradictory and implausible stories of the Bible, although the judge had previously stipulated that the trial was not about answering questions over evolution and biblical creation. Scopes was found guilty and fined $100, which was later reversed on a technicality. The Scopes Monkey Trial was the first broadcast live to the nation by radio and the first legal battle over religion in public schools to entice the nation. The battle of Darwin versus Genesis in the classroom, however, would not be resolved for more than 40 years.

The Supreme Court started tackling civil rights issues regularly in the 1920s, when it differentiated between appropriate and inappropriate free speech restrictions and declared in 1925 that the Bill of Rights applied to the states, reversing a century-old precedent. One key case in this era concerning public education was Meyer v. Nebraska in 1923 when the Court unanimously ruled that a state law banning the teaching of foreign languages was “arbitrary and without reasonable relation to any end within the competency of the State.”[15] The Court ruled that states could overstep their constitutional bounds in regard to public education. Once the Court started deferring economic matters to legislators and the states, new civil rights concerns over individual liberty and the power of government showed up more and more on the docket.

Jehovah’s Witnesses hold strong beliefs concerning idolatry and saluting the American flag is considered as such. This was at issue in 1940 when the Supreme Court ruled that compulsory flag salutes in public schools did not infringe the Free Exercise Clause within the religion clauses of the First Amendment: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Lillian, 12, and William Gobitas, 10, were expelled from their Pennsylvania school when they refused to salute Old Glory and recite the Pledge of Allegiance (the phrase “under God” was not included into the Pledge of Allegiance until 1954 so that was not at issue). Two lower federal courts ruled in favor of the Gobitas family, but the Supreme Court ruled, 8-1, that — contradictory precedent notwithstanding — “the courtroom is not the arena for debating issues of educational policy,” and the state legislature did not overstep its bounds.[16] Justice Felix Frankfurter wrote for the majority in Minersville School District v. Gobitis (court records misspelled the name), “Judicial review, itself a limitation on popular government, is a fundamental part of our constitutional scheme. But to the legislature no less than to courts is committed the guardianship of deeply-cherished liberties.”[17] The ruling fueled violence and harassment across the United States against Jehovah’s Witnesses, and several legislatures and school boards adopted similar Pledge of Allegiance and flag-salute statutes; the ACLU noted that 1,488 Witnesses in 335 communities had been attacked by vigilantes in a six-month period.[18] “This was the nationwide answer to Justice Frankfurter’s suggestion that the Jehovah’s Witnesses appeal to the state legislatures for relief,”[19] professor Paul Finkelman has observed. Justice Harlan Fiske Stone, the lone dissenter in Gobitis, concluded that not only did the expulsion of the Gobitas children infringe free speech rights, but with “this law the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions.”[20] Lillian Gobitas later recalled, “It never really occurred to us that the Court’s decision would be anything but favorable.”[21]

Topics the Supreme Court has reversed itself on in its 220-year history include segregation, executing minors and the mentally ill — and public school flag salutes. Walter Barnette filed suit on behalf of his children to reverse West Virginia’s flag-salute statute in 1942. Both a federal circuit court and appeals court rejected Gobitis in favor of the Barnette family. Lawyers representing the Barnettes at the Supreme Court compared Gobitis to the Dred Scott decision of 1857, [22] the case which affirmed the constitutionality of slavery. The Court reversed Gobitis on Flag Day, 1943, with Justice Robert Jackson ruling that “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”[23] The difference in Barnette was that the justices weighed whether the plaintiffs’ free speech rights, not religious freedom rights, were being violated, which allowed them to apply the “clear and present danger” precedent from the landmark case Schenck v. U.S in 1919. If the students’ actions of quietly refraining from the Pledge or flag salute did not infringe the rights of others or threaten the government, then there was no valid reason to suppress their expression.[24] Jackson could simply not univocally compare national security interests with public school students refusing to salute the flag, as Frankfurter had argued in Gobitis. Jackson warned Americans not to act like the oppressive governments of their World War II enemies and said that school boards, as a function and creation of the state, must adhere to the Fourteenth Amendment’s promise of civil rights. “If there is any fixed star in our constitutional constellation,” he ruled, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”[25]

Barnette was a pivotal ruling concerning free speech in public schools pertaining to a religious belief but not strictly a question of freedom of religion. The question of establishment of religion in schools would be raised in Everson v. Board of Education in 1947. Ewing Township allotted public funds for busing for private school students, and the Court ruled that this was a constitutional practice because such provisions, as Justice Hugo Black wrote in the majority opinion, “intended to guarantee free transportation of a kind which the state deems to be best for the school children’s welfare.”[26] Despite siding against strict interpretation of the Establishment Clause, Black’s ruling indoctrinated a new interpretation of First Amendment freedoms:

[N]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.[27]

Everson also reaffirmed — and resurrected — historical precedent from the Founding Fathers first quoted by the Court in Reynolds v. U.S. in 1879 when the Court upheld an anti-polygamy law in the territories. These included James Madison’s “Memorial and Remonstrance” speech in 1785 in which he “demonstrated ‘that religion, or the duty we owe the Creator,’ was not within the cognizance of civil government,” and Thomas Jefferson’s letter to the Danbury Baptist Association in 1802 in which he said, “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State.”[28] Black wrote that in his speech, Madison

… eloquently argued that a true religion did not need the support of law; that no person, either believer or nonbeliever, should be taxed to support a religious institution of any kind; that the best interest of a society required that the minds of men always be wholly free, and that cruel persecutions were the inevitable result of government-established religions.[29]

Everson also discusses Jefferson’s Virginia Statutes for Religious Freedom in 1779, which stated: “That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief ...”[30] Maddox defined Jefferson’s “wall of separation” as: “Church and state would appreciate each other but would function in separate spheres, free, as much as possible, from interference from one another.”[31]

Black’s declaration in Everson would reemerge just a year later in McCollum v. Board of Education. The Champaign Council on Religious Education in Champaign County, Illinois, was comprised of Jewish, Catholic and Protestant clergy to teach participating public school students during the school day in the schoolhouse; nearly 2 million students nationwide participated in time release programs such as these in 1945. Vashti McCollum, the plaintiff, who had support from numerous religious groups with her lawsuit, believed her son was suffering from peer pressure and banishment for conspicuously not participating in the program.[32] The Court found in McCollum that sectarian use of tax-funded public property to aid religious groups in their faith was in violation of the First Amendment. Justice Black penned for the majority, “For the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere.”[33] To resolve the question of establishment with time release programs, several school districts allowed students to leave school early to attend them.

Such was the case in New York City when the ACLU and American Jewish Counsel encouraged Tessim Zorach and Esta Gluck to challenge a local time release program in 1948 by trying to show “there was substantial public school aid and involvement, and that there was strong pressure on children to participate.”[34] In 1952, the Supreme Court, with a 6-3 vote, upheld the two lower court rulings that such programs did not violate the Establishment Clause and McCollum. Justice William O. Douglas wrote for the majority in Zorach v. Clauson, “The First Amendment … does not say that in every and all respects there shall be a separation of Church and State. … Otherwise the state and religion would be aliens to each other — hostile, suspicious, and even unfriendly.”[35] He explained, “We are a religious people whose institutions presuppose a Supreme Being. … When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions.”[36] Justice Douglas clarified this position in 1963:

… we are Christian because the vast majority of our people profess a Western religion, not one of the East. But that is not the reason why it would violate the Establishment Clause to require Moslem [sic] prayers in public schools. Eastern religions, whether Hindu, Buddhist, or Islam, are as much protected by the First Amendment as any other.

Zorach “became the symbol of a new constitutional tolerance of governmental friendliness to organized religion,” and Douglas’ maxim was widely circulated and repeated to buttress this stance, political science professor Frank J. Sorauf wrote in 2001.[37] “The Zorach decision signaled the Court’s entry into a national debate over the place of religion and religious values in public life, and, as such, it altered the terms of that debate” since it seemed to conflict with the stern stance of separation established in McCollum.[38] Justice Douglas would explain years later that with McCollum, “If government introduces religious education into public schools, it violates the Establishment Clause as it puts the weight of the school system behind a particular creed, dogma, or faith,” and that the time release plan in Zorach was permissible, “provided, however, that if coercion is used to get students to use the public school recess to attend religious services then there is a violation of the Free Exercise Clause.”[39]

A religious revival swept postwar America in the face of the institutionalized atheism of communist totalitarianism threatening Europe and Asia, and the Everson-McCollum-Zorach trifecta for Establishment and Free Exercise Clause boundaries ignited a new interpretation of First Amendment law. In 1998, professor Phillip E. Hammond wrote about two ideas concerning the religious clauses: separationist and accomodationist. The former “claims to adhere strictly to the No Establishment standard” and “uphold the religions of individuals and thus to adhere to the Free Exercise standard,” and the latter claims that “government should facilitate, even encourage, religion by making religious actions easier to perform.”[40] Justice Douglas touched on this issue in 1963: “Christianity has sufficient inner strength to survive on its own. It does not need state subsidies, nor state privileges, nor state prestige. The more it obtains state support the greater it curtails human freedom.”[41] Ronald F. Thiemann argues in Religion in Public Life in 1996 that a metaphor of “separation of church and state” and notions of “neutrality and accommodation” are insufficient in the church-state debate.[42] “The slogan ‘the separation of church and state’ impedes our understanding of the proper role of religion in American public life,”[43] he asserts. “If the courts are to have the responsibility of judging whether a governmental action has a secular purpose, judges will be placed in the uncomfortable position of being both theological and social critics.”[44] Professors Isaac Kramnick and R. Laurence Moore contended in The Godless Constitution in 1996 that the Constitution was framed with a non-religious, Jeffersonian foundation of religious freedom and twentieth century “religious correctness … refuses to recognize secularism as a fundamental principle of American government.”[45] In the wake of Barnette, Everson, McCollum and Zorach, most Americans believed that public schools could serve as religious agents as long as no students were coerced to participate or denounce their own beliefs. Hammond concludes that in more than two centuries of living under the religion clauses, “American society has moved from a more accomodationist position to a more separationist position … out of necessity …” with a “structural” shift.[46]

Teacher-led public school prayer was not uncommon by the early 1960s but was certainly not everywhere. A survey conducted in 1962 indicated that half of American school districts, mostly in the East and South, had some form of mandated prayer, and actual practice was “spotty.”[47] Maddox explains, “Many defenders of school prayer stuck up for the devotional time more from a concern for the stability and wellbeing of the country than out of concern for the spiritual welfare of the youngsters …”[48] Also by this time, the Supreme Court, under the guide of Chief Justice Earl Warren, infuriated many American conservatives with constitutional stances promoting desegregation and criminal rights. In 1951, the New York State Board of Regents established a prayer “intended to be nondenominational in content”[49] that read: “Almighty God, we acknowledge our dependence upon thee, and we beg thy blessings upon us, our parents, our teachers and our country.”[50] “The prayer was intended to be optional for both the local school boards and for individual students,” according to professor Paul L. Murphy. “Although the prayer was supposed to be voluntary, the New Hyde Park school board initially had made no provision for excusing students who did not wish to participate from the classroom.”[51] The parents of ten students, representing Jewish, Unitarian, atheist and Ethical Cultural Society creeds, filed suit against the school board and state. Three lower courts rejected the plaintiffs’ protest that “the so-called nondenominational prayer violated their religious beliefs, that the school had coerced their children into participating in a religious exercise, and that the state’s authorization of the prayer was a violation of the First Amendment,”[52] before the Supreme Court agreed to hear Engel v. Vitale. The Court ruled 6-1 (two justices took no part in the case) on June 25 to side with the parents. Justice Hugo Black wrote for the majority,

Because of the prohibition of the First Amendment against the enactment of any law “respecting an establishment of religion,” which is made applicable to the States by the Fourteenth Amendment, state officials may not compose an official state prayer and require that it be recited in the public schools of the State at the beginning of each school day — even if the prayer is denominationally neutral and pupils who wish to do so may remain silent or be excused from the room while the prayer is being recited.

Black pointed to America’s history of maintaining a secular state and “a wall of separation.” Although he explained that “Neither a state nor the Federal Government … can pass laws which aid one religion, aid all religions, or prefer one religion over another,” Black argued, “it has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong.”[53] Engel was the first Court decision to point to Roger Williams, the banished Puritan pastor who founded Rhode Island in 1644, as a central historical figure in American religious freedom history. Williams wrote two books defending his belief in separation and that the Church and the state should not intermingle, as he interpreted in Scripture. In a separate concurrence, Justice Douglas explained that the

First Amendment leaves the Government in a position not of hostility to religion, but of neutrality. The philosophy is that the atheist or agnostic — the nonbeliever — is entitled to go his own way. The philosophy is that, if government interferes in matters spiritual, it will be a divisive force. The First Amendment teaches that a government neutral in the field of religion better serves all religious interests.[54]

Political reaction to Engel was immediate and stinging. Members of Congress declared that “the Supreme Court had set up atheism as a new religion,” the justices had “put the Negroes in the schools” and “driven God out,” the ruling provided “aid and comfort to Moscow” and was the most “tragic” decision in the nation’s history;[55] even former President Dwight Eisenhower and former Vice President Richard Nixon publicly condemned Engel. The Senate Committee on the Judiciary proposed a constitutional amendment so “any public school system may provide time during the school day for prayerful meditation.”[56] However, former President Harry Truman supported the Court’s authority to interpret the Constitution, and President John F. Kennedy pointed out that church and the home were the most proper places for prayer, by advocating Engel.[57] Religious sects were divided on the ruling, but many national Jewish groups and prominent American newspapers supported the Court’s decision. In September 1962, a survey conducted by the Religious News Service concluded that “first samplings of schools in 15 states indicates that they will continue their former practices of prayer and Bible reading without change.”[58] Because a majority of public school administrators and high school principals disagreed with the Court on school prayer, especially in the South, and more than 10 percent of superintendents nationwide reported that prayers continued in some of their schools,[59] litigation concerning school prayer in various forms continued for decades. If Brown v. Board of Education in 1954 sparked Massive Resistance to desegregation, then Engel and subsequent Warren Court cases concerning the Establishment Clause ignited a Second Massive Resistance during the Civil Rights Movement.

Another church-state case, this time concerning mandated Bible and prayer recitation, came before the Court less than a year after Engel. A Pennsylvania law passed in 1959 stated: “At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian.”[60] A family of Unitarians, the Schempps of Abingdon, filed suit because such religious practices in school is “contrary to the religious beliefs which they held, and to their familial teaching.”[61] Heavily citing Engel, Justice Thomas Clark ruled for the majority that a law that passes the Establishment Clause test must have “a secular legislative purpose and a primary effect that neither advances nor inhibits religion.”[62] Furthermore,

The wholesome “neutrality” of which this Court’s cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits.[63]

In a lengthy concurrence, Justice William Brennan responded to critics: “The principles which we reaffirm and apply today can hardly be thought novel or radical. They are, in truth, as old as the Republic itself, and have always been as integral a part of the First Amendment as the very words of that charter of religious liberty.”[64] Schempp was accompanied with Murray v. Curlett, which also addressed Bible recitations. Madalyn Murray — who as Madalyn Murray O’Hair would later found American Atheists — filed suit in Baltimore after her son was forced to wait in the hallway after refusing to participate in classroom recitations. Clark ruled in Murray just as in Schempp that such practices were unconstitutional, even if students were not coerced to participate. The Murray decision pointed out that the U.S. Census Bureau identified 83 separate religious bodies, each with a membership of over 50,000.[65] Billy Graham called the rulings “a diabolical scheme,” Alabama Gov. George Wallace and Mississippi Gov. Ross Barnett vowed to ignore the Court, and U.S. Rep. Frank Becker proposed a constitutional amendment that would defend voluntary biblical recitation and prayer in public schools,[66] but there was an understanding that both would be nondenominational. The House Judiciary Committee convened hearings over Becker’s proposal in early 1964, where he was asked to define “nondenominational” and “nonsectarian,” as well as if the Bible is sectarian or not. During the proceedings, committee member George Senner asked Rep. J. Edgar Chenoweth if students could bring their own Bibles to school and pray on their own. Yes and yes. Senner concluded, “But many of the general public believe that is prohibited by the decision of the Supreme Court.”[67] The debate ignited issues over who should compose the prayers and choose the Bible passages, how this could be achieved by public school teachers as agents of the state without being establishment and if such an amendment was tyranny of the majority. Despite support from four American cardinals and 36 bishops, 223 law professors and the Johnson Administration opposed Becker’s amendment, and the proposal died in committee before summer recess. Justice Douglas summed up the debate the school prayer cases provoked:

As to prayers in public schools, we should remember that public schools are supported by all sects — nonbelievers as well as believers, by minorities as by the majority. … [P]ublic schools are designed to train American students in an atmosphere that is free from parochial, sectarian, and separatist influences.[68]

The principal question at the center of the Scopes trial — if states could prohibit teaching the theory of evolution — was finally resolved in 1968. The Court unanimously ruled in Epperson v. Arkansas that such statutes were unconstitutional in large part because, “The sole reason for the Arkansas law is that a particular religious group considers the evolution theory to conflict with the account of the origin of man set forth in the Book of Genesis.”[69] Arkansas’ anti-evolution law from 1928 conflicted with a biology textbook the Little Rock school administration had its science teachers use, which in 1965 was the first textbook in Arkansas to include Darwin. At the time of the Epperson ruling, only Arkansas and Mississippi had anti-evolution statutes. Justice Abe Fortas penned for the Court that the law was simply too vague and “cannot stand.” “No suggestion has been made that Arkansas’ law may be justified by considerations of state policy other than the religious views of some of its citizens,” he ruled. “It is clear that fundamentalist sectarian conviction was and is the law’s reason for existence.”[70] Fortas pointed to the 1871 case Watson v. Jones — which stemmed from a sectarian land ownership dispute — to buttress his argument: “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.”[71]

The Court would continue to address Establishment and Free Exercise cases concerning public schools unabated, including questions over teaching “creation science,” school vouchers, moments of silence, benedictions at graduation ceremonies and other prayer activities. “The essential tension reflected in the Court’s adjudication of the Constitution’s religion clauses is a manifestation of America’s basic dilemma regarding the role of religion in public life,” Thiemann concluded.[72] “Strict separation” promotes legal disestablishment but ignores patterns of cooperation between church and state in America’s history, while “mutual cooperation” seeks to acknowledge traditional relations between Christianity and the state but ignores growing religious pluralism in the United States.[73] Maddox argues that religious individuals have a mandate to “convert all people to their religion” because “a balanced religious faith provides stability and good mental health.”[74] However, “Religious people involved in the political process must not make political issues into moral absolutes and moral absolutes into political issues.”[75] Americans may disagree on the Constitution’s interpretation and meaning, Hammond argues, “but they are not free to accept or reject its authority. One ceases to be an American citizen in any meaningful sense if one rejects the authority of the Constitution …”[76] Kramnick and Moore stipulated that “moral and religious convictions will and should play a prominent part” of political, social and policymaking discussion but, “What is unacceptable to us in light of the godless Constitution is for religious certainty ever to trump politics and for government policy in any way to privilege or codify religious beliefs in ways that preempt a pluralist democratic process.”[77] Justice Douglas observed,

Truth of the religious belief — like sincerity in embracing it — is foreclosed even where the practitioners are charged with a fraudulent intrigue. Religious experience is beyond the competence of courts and juries to prove or disprove.[78] … In sectarian circles hunger for secular power is still strong the world over.[79]

Legal precedent that the First Amendment religious clauses meant the federal government could not give explicit favoritism to any one denomination became antiquated during the mid-twentieth century. Increasing religious and cultural pluralism spawned a new consciousness over spiritual freedom and students’ rights. As Larson explained, by the time of the Scopes trial a new movement “rejected the idea that public education should promote any particular political, economic, or religious viewpoint — even one broadly defined as democratic, capitalistic, or Christian.”[80]

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[1] Fitzgerald, Robert. “Student Rights in Modern America: A Review of Supreme Court Cases from 1962 to Today and Their Impact on Public School Administrators.” Illinois State Law School Quarterly. Retrieved November 30, 2005.

[2] Maddox, Robert L. Separation of Church and State: Guarantor of Religious Freedom. (New York, 1987), pg. 100.

[3] Alley, Robert S. School Prayer: The Court, the Congress and the First Amendment. (Buffalo, 1994), pg. 75.

[4] Thiemann, Ronald F. Religion in Public Life: A Dilemma for Democracy. (Washington, 1996), pg. 4.

[5] As quoted in Douglas, William O. The Bible and the Schools. (Boston, 1966), pg. 35.

[6] Boston, Rob. “When Christians Killed Each Other Over Religion in Public Schools.” Liberty: A Magazine for Religious Liberty, May/June 1997. Retrieved November 30, 2005.

[7] Maddox, Op Cit., pg. 102.

[8] Boston, Rob. “The Blaine Game.” (September 2002). Retrieved December 1, 2005.

[9] Larson, Edward J. Summer for the Gods: The Scopes Trial and America’s Continuing Debate Over Science and Religion. (New York, 1997), pg. 27.

[10] As quoted in Epperson v. Arkansas, 393 U.S. 97 (1968).

[11] Duffy, Bernard K. “The Scopes Trial: A Collision of Cultures.” Historic U.S. Court Cases: An Encyclopedia, Vol. II. (New York, 2001), pg. 943.

[12] Larson, Op Cit., pg. 41.

[13] As quoted in Ibid., pg. 75.

[14] Ibid., pg. 944.

[15] Meyer v. Nebraska, 262 U.S. 390 (1923).

[16] Minersville School District Board of Education v. Gobitis, 310 U.S. 586 (1940).

[17] Ibid.

[18] Peters, Shawn Francis. Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution. (Lawrence, 2000), pg. 85.

[19] Finkelman, Paul. “The Flag Salute Cases.” Historic U.S. Court Cases: An Encyclopedia, Vol. II. (New York, 2001), pg. 948.

[20] Gobitis, Op Cit., dissent.

[21] Peters, Op Cit., pg. 70.

[22] Finkelman, Op Cit., pg. 953.

[23] West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

[24] Finkelman, Op Cit., pg. 953.

[25] Barnette, Op Cit.

[26] Everson v. Board of Education of Township of Ewing, 330 U.S. 1 (1947).

[27] Ibid.

[28] As quoted in Reynolds v. U.S., 98 U.S. 145 (1878).

[29] Everson, Op Cit.

[30] As quoted in Ibid.

[31] Maddox, Op Cit., pg. 69.

[32] Sorauf, Frank J. “Religion in the Public School Day: The Released Time Cases.” Historic U.S. Court Cases: An Encyclopedia, Vol. II. (New York, 2001), pg. 959.

[33] McCollum v. Board of Education, 333 U.S. 203 (1948).

[34] Sorauf, Op Cit., pg. 962.

[35] Zorach v. Clauson, 343 U.S. 306, (1952).

[36] Ibid.

[37] Sorauf, Op Cit., pg. 963.

[38] Ibid., pg. 964.

[39] Douglas, Op Cit., pg. 11.

[40] Hammond, Phillip E. With Liberty for All: Freedom of Religion in the United States. (Louisville, 1998), pg. 3.

[41] Douglas, Op Cit., pg. 58.

[42] Thiemann, Op Cit., pg. 72.

[43] Ibid., pg. 43.

[44] Ibid., pg. 49.

[45] Kramnick, Isaac and Moore, R. Laurence. The Godless Constitution: The Case Against Religious Correctness. (New York, 1996), pg. 174.

[46] Hammond, Op Cit., pg. 14.

[47] As quoted in Maddox, Op Cit., pg. 121.

[48] Ibid., pg. 122.

[49] Murphy, Paul L. “To Pray or Not to Pray: The Supreme Court Says No to Prayer in the Public Schools.” Historic U.S. Court Cases: An Encyclopedia, Vol. II. (New York, 2001), pg. 966.

[50] Engel v. Vitale, 370 U.S. 421 (1962).

[51] Murphy, Op Cit., pg. 966.

[52] Ibid.

[53] Engel, Op Cit.

[54] Ibid., concurrence.

[55] As quoted in Murphy, Op Cit., pg. 968.

[56] As quoted in Alley, Op Cit., pg. 112.

[57] Murphy, Op Cit., pg. 968.

[58] As quoted in Alley, Op Cit., pg. 118.

[59] Murphy, Op Cit., pg. 970.

[60] School District of Abingdon Township v. Schempp, 374 U.S. 203 (1963).

[61] Ibid.

[62] Ibid.

[63] Ibid.

[64] Ibid., concurrence.

[65] Murray v. Curlett, 374 U.S. 203 (1963).

[66] Alley, Op Cit., pg. 123-124.

[67] As quoted in Ibid., pg. 134.

[68] Douglas, Op Cit., pg. 58.

[69] Epperson, Op Cit.

[70] Ibid.

[71] As quoted in Ibid.

[72] Thiemann, Op Cit., pg. 65.

[73] Ibid.

[74] Maddox, Op Cit., pg. 190.

[75] Ibid.

[76] Hammond, Op Cit., pg. 109.

[77] Kramnick, Op Cit., pg. 176.

[78] Douglas, Op Cit., pg. 5.

[79] Ibid., pg. 40.

[80] Larson, Op Cit., pg. 75.