Winter 1988 An Appreciation of the Importance of Tolerance An Appreciation of the Importance of Tolerance: World War I, Edward F. Alexander, and the Trial of Thirteen Cincinnati Socialists

Steven L. Wright

Most Americans are generally familiar with the anti-German hysteria which occurred as a result of the nation's military involvement in World War I. They may not know, however, that many notable reactions against German- Americans, German sympathizers, and German culture occurred in Cincinnati. The fear of Bolshevism that gripped America in 1917 and continued unabated until late 1920 is also well known. What is not apparent is that America's reaction to both war and revolution became inextricably bound. The fear of Russian Bolshevism was conditioned and tempered by the extreme intolerance which surrounded America's war participation. And nowhere was this melding of war intolerance and reactionary fear of Bolshevism better demonstrated than in Cincinnati.1 The arrest in 1917 and subsequent trials of thirteen Cincinnati Socialists were shaped by both the national mood and world events. Initially charged with treason for distributing anti-conscription handbills during the war, the fates of these Socialists and their defense attorney became linked to the Red Scare hysteria occurring after the war. This character denigration, and intolerance. essay examines how the irrational fear of both anti- What follows is first a description of the events intervention proponents and Bolshevism constricted the civil leading to the Socialists' arrest, and an examination of the liberties of thirteen Cincinnatians. Even their defense charges for which they initially were indicted. The majority attorney, Edward F. Alexander, did not remain unscathed. His of the second phase portrays the emotional and prejudicial promising career in public life, although not ruined, was atmosphere which existed during the trial. Contemporary stifled. As a result of the trial, Alexander became a threat events insured that an impartial trial would be difficult, but because he protected individual rights when they conflicted the actions of the prosecuting attorney and judge exacerbated with the established goals of the general community. He, an already tenuous situation. Finally there is an effort to assess along with other lawyers nationwide, unknowingly embarked the case's significance and to place it in historical perspective. on a course that expanded the permissible limits of individual When taken together with similar events occurring at the same freedom. As one legal historian noted as a result of World time, it appears that the case, Hammerschmidt et al v. U.S. War I and the Bolshevik Revolution, the politics of American should be one of the seminal events which helped define the civil liberties "emerged as a public question."2 It is a de- parameters of civil rights, especially those guaranteed by the pressing and dreary tale of repression, witch-hunting, Bill of Rights. However, because the Supreme Court failed

Steven L. Wright has a M.A. in Cincinnati attorney, Edward F. some regarded as not being history from the University of Alexander, agreed to defend the 100% patriotic. Cincinnati. thirteen Socialists because he could not see the wisdom of stirring up such "a furious flood of hate" against individuals Queen City Heritage to address the civil rights issues present in the case, it became "patriotic" organizations possessed the power to round up all relegated to a case which only defined the legal meaning of alleged slackers and, as one historian stated, "to force patriotic "conspiracy to defraud." Nevertheless, the case should be citizenship upon them." After the Selective Service Act was viewed broadly, for it illustrates the intolerance often passed on May 18, Justice Department officials and characteristic of American life during and following national representatives from these private organizations conducted a emergencies. series of dragnet raids throughout the country. As National On April 2, 1917, Woodrow Wilson asked Registration Day approached, these raids intensified, Congress to declare war on Germany. Later that evening, resulting in arrests in New York City, Chicago, Kansas City, Wilson voiced his concern and fears about leading the and Cincinnati.5 American people into a foreign war to newspaper editor, Even Wilson became involved when the Los Frank Cobb: Angeles Times cited him as the source of a news story that Once lead this people into war and they will forget there ever wascarried the headline: "Anti-Draft Agitators to be Treated with such a thing as tolerance. To fight you must be brutal and ruthlessno Leniency." In early June a similar article appeared in a and the spirit of ruthless brutality will enter into the very fibre of Cincinnati newspaper. It condoned the government's our national life, infecting Congress, the courts, the policeman ondeclaration of war against "anti-conscription speakers and the beat, the man on the street.3 plotters of all sorts" and pledged to prevent the "escape" of Wilson was right. The spirit of intolerance spread like a all who avoided draft registration. When the force of the contagion. government united with public opinion, there was little doubt On May 18,1917, Congress passed the Selective that opposition to the Selective Service Act and the war would Service Act. It required males aged twenty-one to thirty to not be tolerated.6 register and it also gave officials the authority to arrest anyone The Socialist Party of America was the only who obstructed the registration process. Secretary of War, major political party opposed to the war, and though far less Newton D. Baker, aware of Americans' traditional reluctance powerful than its European counterparts, it found little to any form of conscription, hesitated to have it administered difficulty obtaining support in industrial cities and urban areas directly by the army. He had local draft boards conduct the with large immigrant populations. Before the outbreak of war draft selection process, thereby creating the illusion that the in 1914, thirty legislators of twelve states and more than 1,000 draft was democratic and free from direct governmental municipal officials belonged to the Socialist Party. Its national interference. Furthermore, in an effort to encourage membership totaled into the hundreds of thousands. By the participation, Baker designated June 5, 1917, as National 1917 local elections its candidates garnered more votes than Registration Day. On that day qualified young men in any previous election. The Socialist Party's candidate for throughout the country signed up for the draft in their local mayor in Cincinnati, Thomas Hammerschmidt, received 11.9 areas. Many Americans accepted the government plan, and percent of the vote. Even more significant percentages were viewed it as a way to demonstrate their patriotism.4 registered for mayors in Dayton, Toledo, and Cleveland.7 But even before conscription was enacted, After Congress declared war, the Socialist Party quickly Americans publicly opposing involvement in the war were voiced its opposition and convened an emergency meeting in arrested and charged with disorderly conduct or unlawful St. Louis. Despite token opposition from a pro-war faction, assembly. Sentences usually amounted to jail terms from three the party officially denounced the war declaration, and months to one year and a small fine. Both the government pledged "continuous, active and public opposition to the war and the public soon developed a desire to give harsher through demonstrations, mass petitions, and all other means sentences to anyone who voiced opposition to the war and, within our power."8 eventually, to conscription. In an effort to manage domestic The spirit of opposition manifested in St. Louis opposition to the war, Wilson instructed his Attorney also surfaced on May 20 in Cleveland when local Socialists General, Thomas Gregory, to prosecute any "slacker" who publicly demonstrated against the government's recently failed to register. The Justice Department vengefully went enacted Selective Service Act. Lotta Burke, a native after all those who voiced opposition. In addition to the Cincinnatian and an active Cincinnati Socialist since 1903, department's regular investigative offices, Gregory enlisted attended the rally where she took home a handbill denouncing the services of the American Protective League, the National conscription. A few days later, Burke led a movement to hold Security League, and the American Defense Society. These an outdoor protest rally against the Selective Service Act on DOWN WITH CONSCRIPTION An Appreciation of the Importance of Tolerance 5 The 1st Amendment to the Federal Constitution. space remained at the bottom enabling them to stamp the time Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of SPEECH, or of the press; or the right of the people peaceably to assemble, and to petition the Government and place of the rally as soon as the specifics were confirmed. Due to time constraints, they decided to have Tom Foster, The 13th Amendment to the Constitution of the United States reads: a local printer and fellow Socialist, print the handbills instead "Neither slavery nor invo] itary servitude, except as a p of sending their order to the state office in Lakewood, Ohio.11 whereof the party shall ha l been duly convicted, shall ex 'ithin the United States or any places subje The Socialist candidate for mayor, Thomas CONSCRIPTION IS THE WORST FORM Hammerschmidt, met Burke outside party headquarters and OF INVOLUNTARY SERVITUDE told her he could not guarantee Central Turner Hall for the The conscription law which the Wilson adminstration intends to put into effect proposes that the young men or this nation shall be taken trom their homes against rally. The hall's manager, "fearful of the times," wanted to first their will, and sent to the trenches of France to murder and be murdered in a war over the commercial interests of the capitalist class. obtain the trustees' permission. Hammerschmidt then offered Daniel

One of the millions of leaflets issued by the Socialist Party Burke pick up the entire order two days later than originally SOCIALIST PARTY OF OHIO- 1291 Cook Ave., Ldkewood, O planned. Not wishing to appear difficult, she agreed. The new delivery day was also the Socialist Party's weekly meeting day, which Burke felt would allow members to make arrangements June 4, the day prior to National Registration Day.9 to stamp the date, time, and location of their June 4 rally on Fearing that disorder and possibly arrest might the handbills.14 result from an outdoor "street rally," party members opted Shortly before the party's weekly meeting for an indoor rally in Central Turner Hall. The purpose of commenced, Burke and a fellow party member stopped by the rally was not to instigate trouble, but to determine the Foster's print shop to pick-up the handbills. It took Foster constitutionality of the conscription law. If party members close to an hour to finish bundling the circulars, and because somehow determined it to be unconstitutional, they would Burke forgot her glasses, she did not proofread the completed petition Congress to repeal the act. Additionally, Burke handbills. In accordance with standard distribution proposed that a handbill (similar to the one she received in procedure, Burke dropped one of the bundles at a member's Cleveland) be printed, advertising the rally's date, time, and home. She then proceeded to the Socialist Party headquarters location. Party members agreed and passed the handbill on Walnut Street where Burke noticed approximately 200 resolution; however, they did not discuss the circular's people gathered outside the building. She quickly learned that, content.10 due to the large crowd, members had decided to turn the Burke and two fellow Socialists prepared the weekly meeting into a full blown propaganda meeting, thereby circular for printing. Using the Cleveland handbill as a guide, allowing non-party members to participate. Perhaps they crossed out the "Refuse to Register" line and replaced intimidated by the size of the crowd or just forgetful, Burke it with "the First Amendment." They also struck the resolution left no specific instructions regarding the disposition of the portion which pledged financial and moral support to all those remaining circulars, nor later did she know their whereabouts. who refused "to become victims of the ruling class." These Her apparent disregard proved fateful.15 two alterations indicated that they did not want to appear Earlier that evening, before Burke's arrival, radical or, for that matter, be viewed as law breakers. A vacant some Socialist Party members had asked for specifics on the

Using the Cleveland Handbill as all who refused "to become vic- a guide Burke and her col- tims of the ruling class." leagues crossed out the "Refuse to Register" and struck the portion which pledged financial and moral support to Queen City Heritage rally scheduled for June 4 at Central Turner Hall. follow specific instruction raises an interesting yet unprovable Hammerschmidt notified them that he had been denied the supposition. Originally perhaps, Foster made an honest effort use of the hall, and therefore, there could be no public protest. to print the handbill according to Burke's instructions. According to witnesses, the increasing noise and general However, between the time that Burke proofread the original confusion within the room prevented everyone from hearing copies and the evening she picked up the circulars, it was that information. possible that something or somebody caused Foster to One man who failed to receive the word was substantially alter the circular from that which Burke Joseph Geier, literature agent for the eleventh ward. All he requested. Possibly government agents became privy to the heard was that some of the handbills had been left at the home Socialist Party's intentions in the interim and asked Foster, of Rothenbusch's sister, and he was responsible for their in exchange for immunity, to ignore Burke's alterations and delivery. "Nobody told me to go over there," he later recalled, print the inflammatory portions of the Cleveland circular. "the word was passed around that they [the circulars] were This is a real possibility because Burke later recalled that after there."16 Because it was so late in the evening, Geier and six she arrived at Socialist headquarters with the circulars, other party members agreed to convene the next evening at numerous requests were made throughout the evening for their regular meeting place to distribute the handbills. On handbills. Ironically, these requests did not come from party June 1,1917, the seven Socialists from the eleventh ward left members but rather from strangers.18 Possibly Foster, not Baas' Saloon with route instructions and the anti-conscription desirous of going to jail and yet eager to collect the money circulars and distributed the handbill which they believed was owed him by the Socialist Party, decided to work for both the in harmony with the one the executive committee had agreed government and the party. to have printed. Although each group distributing the circulars Acting with similar fervor, yet independent of operated independently from the other, all eleven Socialists the eleventh ward members, were Thomas Gregory, John shared similar fates. After some of them had distributed a few Hahn, and Philip Rothenbusch. They had learned that some handbills and before others were able to distribute any, a triad circulars were deposited in the back room of Mozart Hall, of plainclothes policemen, United States Secret Service a neighborhood pub close to Socialist headquarters. As an agents, and American Protective League members arrested the impromptu gesture, they agreed to distribute the circulars eleven men and took them to police headquarters.19 within the tenth ward. They met with Arthur Tiedtke, who The government initially charged all eleven by prior arrangement with Gregory, had agreed to join the Socialists with treason and without explanation placed them distribution effort. in solitary confinement for three days. On June 2, ten minutes That same evening, Lotta Burke stopped by before their formal arraignment, the United States Rothenbusch's residence for a social visit. In the midst of the Commissioner asked Edward F. Alexander to act as their conversation, Mrs. Rothenbusch inadvertently showed Burke defense counsel. Filled with trepidation, due to his own a small bundle of handbills that her husband had left on the admitted lack of experience with Federal Court procedure, floor. "As I looked at it," Burke recalled, "I knew it was the Alexander took the case. Reflecting on his decision years later, wrong dodger [pamphlet]. I didn't convey my knowledge to he wrote: "I could never see the wisdom, even from the war Mrs. Rothenbusch because I didn't want her to be disturbed, point of view, of stirring up such a furious flood of hate and but I took those dodgers, I said 'I will take them.' I took them turning it loose on every unfortunate radical or foreigner home, and put them in the stove."17 The handbills' whose mind and heart could not travel fast enough along the inflammatory nature frightened Burke. Foster had printed the lines of standard 100 percent patriotism."20 circular, either purposely or accidentally, with both the The arrest of the eleven Socialists immediately "REFUSE TO REGISTER FOR CONSCRIPTION" and the attracted the concern of the Parly's national leadership. resolution pledging "financial and moral support" to all who Alexander received a letter from Adolph Germer, the party's refused to "become victims of the ruling class." Desperately Executive Secretary, which assured him that the government's frightened and concerned, Burke made a concerted effort to treason charge would never stick. Germer admitted it would contact every member who might be involved with be "inconvenient and very expensive," but concluded that Rothenbusch in distributing the handbills. She failed. because "we are engaged in this fight for the right, [we] will The series of delays and problems Burke have to submit, for the time being, to those injustices that are encountered with Foster's printing, as well as his inability to 'to make the world safe for democracy.'"21 Winter 1988 An Appreciation of the Importance of Tolerance Many Cincinnatians also voiced their concerns, by the war, the reactionary fear of Bolshevism increased. From but unlike the Socialist Party, their views were decidedly early 1919 through late 1920, the Red Scare engrossed negative and defensive. Two days after the arrests, The America. In this unsettling and partisan environment, jury Cincinnati Enquirer warned other potential radicals that the selection commenced in early June, 1919, two years after the government would never rest until it "put behind bars all those defendants' arrest. whose acts brand them as enemies of the United States and If Alexander initially believed the trial could be friends of the Kaiser." Just ten days later, detectives arrested fair and judicious, it only took the jury selection to convince Burke and Hammerschmidt and also charged them with him otherwise. After four and one-half days of questioning treason for having ordered the printing of the circulars, 100 prospective jurors, the trial finally commenced.24 Just two thereby bringing the total arrested to thirteen. The days after the trial began Alexander demanded that the Prosecuting Attorney, Stuart R. Bolin, cogently and presiding judge, Howard C. Hollister, dismiss the case prophetically summarized the Justice Department's position: because of prejudicial statements made by prosecuting "Our courts are not permitting persons who have taken a stand attorney Bolin. Reading to the jury a copy of the handbill against the Government in this war to seek shelter behind the distributed by the defendants, Bolin argued that the Constitution. The Constitution is being virtually suspended conspiracy was not limited to Ohio but rather amounted to during the time when America is facing this tremendous a conspiracy of the Socialist Party of America. He not only crisis."22 asserted that this conspiracy involved violating the After the defendants were released on bail later conscription law, but also included furnishing lawyers for in the summer and before the formal legal proceedings those who did. Joseph Sharts, Alexander's assistant counsel, commenced in the fall, the government realized the treason objected to Bolin's accusation, and questioned why such and charge was inappropriate and could not be justified or utterly false statement was spoken but "for the mere purpose substantiated in court. And because the Socialists' arrest of poisoning the minds of the jury." To this, Bolin replied: occurred fourteen days prior to the passage of the Espionage "You asked for it, didn't you?" Hollister ruled that Bolin's Act, they could not be charged with violating the portion of statements indeed were prejudicial to the defendants and the act which forbade obstructing the recruiting or enlistment reaffirmed that the conspiracy charged in the indictment was service of the United States. But, having arrested thirteen not a conspiracy of either the nation or state Socialist parties. "undesirables" and wanting to charge them with something, However, he overruled Alexander's motion for dismissal.25 the government indicted them under Section 37 of the United Lacking substantial proof of a conspiracy States Penal Code for unlawfully "conspiring to defraud the forced the government to amplify the "overt acts" portion [the United States." As time progressed, this alteration in the physical act of distributing the handbills] of the original indictment, although legally cumbersome and a mere guise, became the least of Alexander's and his clients' concerns.23 There were others much more serious and less easy to overcome. Less than one month after the grand jury's indictment the Bolshevik Revolution occurred. Four months later, Lenin signed a separate treaty with Germany which removed Russia from the war and enabled Germany to concentrate its resources and manpower on the Western Front. These two events greatly affected American society and had a pernicious impact on the trial of the thirteen Cincinnati Socialists. The intolerance exhibited by Americans after their entrance into the war only increased as a result of Russia's revolution. Almost overnight any American who previously advocated non-intervention went from being "proGerman" or "un-American" to being a Bolshevik, whether they believed in the Bolshevik cause or not. Although the allied victory in November, 1918 quelled the anti-German hysteria generated

The trial was held in the U.S. District Court, located in the U.S. Post Office and Courthouse at Fifth and Main streets. Queen City Heritage indictment, and also to discredit the defense's position that government was not concerned that the circular's message Foster intentionally altered Burke's instructions. When these failed to reach draft age males. The intent to obstruct a lawful approaches proved inadequate, Bolin appealed to the jury's function of the United States was present regardless of sense of prejudice and "patriotism." Foster testified that Burke whether it was successful. Ironically, Foster, a fellow Socialist and Hammerschmidt had given him a copy of a Cleveland anti- and printer of the handbills, became the only government draft circular with the First Amendment addition missing and witness who "proved" a conspiracy occurred. Throughout the which included a "Socialist Party of Cleveland" accreditation trial Bolin failed to present any conclusive evidence that could in two places. They requested that Foster print 50,000 of them, apply equally to the other defendants. Indeed the only direct adding the First Amendment to the upper portion and evidence Bolin accumulated was Foster's testimony that linked changing the "Socialist Party of Cleveland" to read Socialist Burke and Hammerschmidt to the printing order. Bolin only Party of Ohio." Foster asked Hammerschmidt if he wanted assumed that anything done by the defendants in a conceited a date or a meeting location printed on the handbill. manner, such as handbill distribution, proved they acted on Hammerschmidt, according to Foster, said that he was unsure instructions received earlier at Socialist meetings.27 when or where the meeting would be held and instructed him The government's case totally hinged on to omit that information. Foster testified further that he Foster, for without his testimony the government had no informed Burke and Hammerschmidt that he would have to evidence of a conspiracy. The eleven men arrested for condense the type on the First Amendment addition in order physically distributing the handbills, although an "over act," to fit everything they wanted on the handbill. Both inadequately proved that a conspiracy existed, for they could Hammerschmidt and Burke concurred, he said, and agreed have acted on a whim without any authorization from party that they would either superimpose the information on the leaders. Furthermore, if the effort had been preplanned, it was front or just stamp it on the back. The key to Foster's strange that Burke and Hammerschmidt, the two people who damaging testimony was his claim that Burke and Ham- ordered the circular's printing, did not assist with the merschmidt did not request an open space on the handbill distribution. Defense counsel realized this and made every where the necessary meeting information could be stamped. effort to discredit Foster's testimony by using damaging This inferred that the Socialists did not have plans for a character references and by proving that he, too, was an meeting and that they intended to use the handbills only as accomplice. After all, he unabashedly printed thousands of a means to interfere with draft registrations. Foster admitted circulars. Moreover, defense counsel strongly inferred, but that when Burke came to proofread a few handbills she made could not prove, that Foster was the unnamed informant from several corrections. "It was full of them, full of mistakes," whom Weakley received the necessary information. Foster testified, "especially this fine copy... but the headlines Obviously, if the jury accepted Foster's testimony, it could not . . . the large type, they were spelled out right." When believe Burke and Hammerschmidt.28 The one contradicted specifically asked whether Burke altered or corrected the the other two. However, judging the technicalities of when "DOWN WITH CONSCRIPTION" or the "REFUSE TO or if a conspiracy occurred, as well as the quality of evidence, REGISTER FOR CONSCRIPTION" portions of the is beyond the scope of this article. What is important is how 26 handbill, Foster answered, "She ok'd the proof." Stuart Bolin's zealous appeals to lingering war "patriotism," The original indictment charged that the anti-socialism, and irrational fear of Bolshevism filledth e void conspiracy commenced on May 27, 1917, when Burke, caused by the paucity of evidence and enabled the jury to Hammerschmidt, and the other Socialists agreed to order the convict thirteen individuals of conspiracy to defraud the anti-conscription handbills for the purpose of impairing draft United States. registration. The violation under Section 37 of the Penal Code The logical reason that Bolin resorted to the occurred when one or more of the conspirators performed tactic of emotional prejudice was because he lacked confidence an "overt act" which completed a preplanned course-of-events. that Foster's testimony could sway the jury. Bolin first revealed The government contended that if a conspirator withdrew this strategy when James Clark, his assistant, questioned a from the plan prior to completing the "overt act" he or she clerk from the Detective Bureau who just happened to be a could not be charged. Because the printing of the circulars member of the government's arresting team. The clerk was followed by distribution, this "overt act" completed the testified that when he searched Frank Reis, one of the preplanned course-of-events and proved, to the government's defendants, he found the handbills wrapped in a newspaper. satisfaction, that a conspiracy had been undertaken. The When asked what kind of newspaper the clerk replied, "A Winter 1988 An Appreciation of the Importance of Tolerance

German language newspaper." obviously was little need for Bolin to read the article. However, when the opportunity arose, Alexander used Bolin's Qj "Is it in German type or English?" tactics to his own advantage.31 A: "German type." A strategy Bolin often repeated involved Q:

Chopin, Schiller and other names like that." To this Bolin lacked relevancy. The only reason Bolin injected the word acerbically asked "And the language of Kultur?" Alexander "Bolshevik" was because the newspapers were replete with immediately objected to Bolin's insinuative use of "Kultur." denunciations of Bolsheviks. Sharts emphatically argued that "She is an American, not a German," Alexander argued. The such interrogation methods were meant solely to prejudice the court did not rule on Alexander's objection. Hollister just told minds of the jury. Bolin obviously disagreed. Somehow he Bolin to "go on." Alexander did not pursue the issue, but intended to prove that Burke, while pending trial on a charge during requestioning he affirmed Durand's allegiance to which went "to the limits of her radicalism," attended a America and the German-American Society's innocuous Bolshevik lecture where she achieved an even greater disregard nature.35 for "constituted authority and the courts." The jury, continued From the beginning, the prosecution relied Bolin, should make whatever use of this event it could. It not almost exclusively on lingering anti-German and anti-Socialist only reflected upon Burke's current attitude, but clearly sentiments. Little, if any, evidence was presented proving a demonstrated the subversive attitude she possessed two years conspiracy existed to defraud the United States. When Burke earlier. Sharts repeated his objection and asked that the case testified, for example, the prosecution effectively exploited the be dismissed. A sharp bout with Hollister ensued. Sharts hysteric fear of Bolshevism then existing in the nation. Bolin reiterated that Burke was charged with conspiracy and not for not only dwelt on Burke's involvement with the Socialist Party reaching the "limits of radicalism." As far as he knew, someone and its various programs and ideals, he asked about her could not be tried in America for possessing radical views. To presence in January 1919 at a public lecture where a supposed this Hollister curtly replied: "Well you are not too old, are "Bolshevik" spoke. After some prodding from Bolin, Burke you, Mr. Sharts, yet to learn?" "I may be learning something responded that her activities and interests were not limited to right now," asserted Sharts. "There must have been a lecturing for the Socialist Party. Because she belonged to the revolution since I learned law." Hollister then sustained Garment Workers Union, the local suffrage organization, as Sharts' objection to Bolin's question but overruled the well as the German-American Literary Society, Burke spoke dismissal motion. Nevertheless, Bolin seemed to have gotten on a myriad of topics. And to this Bolin skillfully asked her what he wanted: Burke became identified not only as a if she did not classify herself as a "radical lecturer?" Defense Socialist, but a dangerous Bolshevik as well. Bolin's counsel objected to the question's self-incriminating nature. instructions were not complete, for the jury needed one more Sharts argued that the term "radical" was too indefinite and tidbit of inflammatory information about Lewis' lecture.37 if Bolin used such a term he should define its meaning. Bolin Bolin commenced the following day's testi- successfully pleaded his case to Judge Hollister and argued mony by inquiring whether Burke, after attending the lecture, that because of the extensive use of the word throughout the asked the crowd for money in order to print leaflets trial the jury desperately needed a complete definition of announcing when the "revolution" would begin. The defense "radical." He assured Hollister that if Burke was unable then again objected and demanded that the court instruct the jury he would "be glad to make it plain as I am able." Burke failed that no inference could or should be made by Bolin's remark. to be lured into Bolin's trap. Realizing the danger in allowing The court agreed Bolin had gone too far. In hindsight, Bolin to explain "radicalism" she simply and tersely defined however, when Hollister sustained the defense's objection, he it as "getting at the root of things . . . nothing else." Since did so in such a manner as to reemphasize the prosecution's she answered the question, Bolin could do nothing but insinuations.38 36 concur. Alexander's defense aimed to disprove that the Bolin then asked whether Burke knew "Prole- thirteen defendants had entered into a conspiracy. His tarian" Tom Lewis. She replied that she had met the Socialist arguments rested on efforts to discredit both Foster's Party lecturer while a member of the speaker's committee but testimony and personal character, and to illustrate the she could not remember the exact date. Bolin knew the lecture innocuous and seemingly democratic nature of the local occurred in January 1919, almost two years after the Socialist Party. Alexander contradicted Foster's testimony conspiracy that Burke was charged with orchestrating. when he presented as evidence Burke's copy of the handbill, Nevertheless, he asked her if Lewis, in addition to being a one of the dozen circulars that Foster initially asked her to Socialist Party lecturer, could not also be labeled as a proofread. The "REFUSE TO REGISTER" line was replaced Bolshevik? Defense counsel objected and denounced Bolin's with the First Amendment; the resolution portion pledging question. Sharts argued that Burke's connection to Lewis "financial and moral support" to all who refused "to become Winter 1988 An Appreciation of the Importance of Tolerance 11 victims of the ruling class" did not exist; and the authorization Bolin immediately objected and the court agreed. Alexander line read "under auspices of the Local Cincinnati Socialist altered his line of questioning but his point was made. Any Party of Ohio." The major problems were twenty-five or more jury genuinely concerned about seeing justice prevail would spelling mistakes and minor alignment errors.39 have to question Foster's credibility as a government witness. Alexander concentrated on denigrating Fos- If Foster could print a Socialist newspaper for profit, it maybe ter's opportunistic character since he became the govern- also was possible that he could lie or be a government witness ment's only witness "knowledgeable" of the supposed for money.40 conspiracy to defraud. Alexander effectively demonstrated Realizing the difficulty of proving that the Foster was less than truthful regarding the extent of his government paid Foster or granted him immunity from involvement with the Socialist Party. He attempted this not prosecution for altering the handbill, Alexander concentrated through circumstantial evidence but by presenting irrefutable on depicting both the decentralized and innocuous nature of evidence. Initially embarrassed and perhaps concerned what the local Socialist Party. Indeed, a portrait of the local party membership implied, Foster changed his testimony after emerged after all thirteen defendants, from the "leadership" Alexander's interrogation: to the underlings, testified to their general involvement in the party and to the specific events leading to June 1, 1917. Qj "So you did apply for membership?" Alexander emphasized that the party was not a "compact A: "I did not apply. I just gave them the money. I don't know corporation conducted by directors" that constantly kept its whether they entered me on the books or not." members informed of its activities. Rather, it resembled a Qj C(Didyou sign an application card at the time'?" "loose, headless society" with volunteers doing whatever A: "I don't know-" seemed necessary as occasions arose. Alexander concluded Q: "You stated a minute ago you didn't do anything but slip them that because no actual leadership hierarchy existed, the actions half a dollar." of individual members were governed by their own zeal and A: "I slipped them the money, but I didn't stand no examination interpretation of what the party cause required.41 or take no oath of loyalty, or anything like that; but I might Alexander had understandably objected to have signed the application." Bolin's admittance as evidence those items found on Qj "YOU might have signed the application?" Rothenbusch, including a copy of the Socialist Constitution. A: "Yes, but I am not sure about that, but after the Socialist paper Eventually, however, he used them to his advantage. Sharts stopped, why then I was no more a member." attempted to read the party's entire constitution to Q: "Now, then, if I understand you, you wouldn't say that you demonstrate the innocuous nature of the Socialist Party and didn't join the Socialist Party?" perhaps act as a less-than-subtle reminder of Bolin's A: ccWell, if I gave them the money and they entered it on the books,newspaper recitation. Unlike Bolin, however, Sharts met some I guess they would class it that way. Why, I am not ashamed judicial resistance. After reading approximately half of the of what I done. If you want to term it that way, why, you can document, Hollister interrupted Sharts and asked whether term it that way. I did it for a matter of business, that's all." reciting the party's political structure was relevant to the case. Sharts argued that throughout the trial everything that Having proved Foster's local party membership and his pertained to the Socialist Party was viewed with suspicion and penchant for opportunism, Alexander elaborated on this he desired to read the party's constitution in its entirety to theme. He produced Foster's National Socialist Party dispel this prejudice. Bolin interjected: "There is not a man membership card. Foster hesitantly confessed that the card on this jury who holds any Socialist prejudice." Sharts ignored belonged to him, but he added that he never read its contents. his statement. Hollister told Sharts that he seriously doubted Alexander then presented evidence further elucidating whether committee structure and voting regulations for Foster's involvement in the party: the first copy, dated committee members were pertinent to the case. "We don't care December 11,1915, of the Cincinnati Socialist. Alexander asked for anything of that kind," Hollister argued. In the interest if Foster printed the newspaper. Foster answered that he of time, he pleaded with Sharts to bypass reading the "guessed" he was the paper's first and only printer. In fact, constitution. Sharts reasserted that it was imperative because Foster added, "I printed it until I stopped it." Alexander then the constitution demonstrated, better than anything else, the asked why he agreed to print the newspaper, was it because harmless nature and democratic structure of both the party party members felt that "you would have profited from it?" and Socialist principles. Hollister finally consented, but he 12 Queen City Heritage urged Sharts that if there was anything he felt he could skip In an effort to lessen the prejudice Bolin had to please do so. Sharts complied and then proceeded to read encouraged throughout the trial, Alexander summarized and from the Party's 1916 campaign platform.42 asked the jury why the district attorney insisted on admitting The attorneys made their greatest impact as evidence those "Socialist" items found on Rothenbusch. He during their closing arguments, for their arguments reflected believed Bolin purposely did so because the membership card the prejudices, hopes, and fears of the postwar era. Alexander and the Socialist Constitution were red in color, and Bolin pleaded and argued for social justice, tolerance, and wanted to connect the Socialist movement with Bolshevism. understanding; Bolin refought the war and inflated the Alexander then proceeded into a very simple and non- lurking evil of Bolshevism.43 philosophical discussion on the color "red." The Socialists did Alexander's argument concentrated on show- not possess a monopoly on red. The Cincinnati Reds, Harvard ing that his clients, instead of being conspirators, were the University, and fashionable men's hats utilized the color. The innocent victims of hate and prejudice. They were not tried only reason Bolin accentuated it was because "he thought he for larceny, murder, or embezzlement. They were tried for could make you see 'red.'" Alexander again reminded the jury their political views and activities, nothing more. It was the that the war was over and pleaded that common sense and kind of trial, Alexander argued, which "flourishes in every understanding replace the hate and the suspicion that country where tyranny and despotism rule." He flatly prevailed throughout society during the war years.44 dismissed the conspiracy charge simply because every turn, Bolin did not begin his closing argument by every insinuation, and every argument made by Bolin reviewing any conspiratorial evidence, rather he pandered to amounted to an indictment of his clients' views and opinions xenophobia. He reemphasized that some defense witnesses about the war. The Constitution guarantees every citizen the were not native Americans but German immigrants, thereby right to free speech, but Alexander believed Bolin sought to implying they were dangerous and undesirable. Unlike disallow or suspend this privilege. The government violated Englishmen, who brought freedom and justice to the their constitutional rights when it charged the Socialists with American shore, Bolin asked what Germans brought. To him treason, thrust them into prison without bond, and then the answer was extremely simple: "The seeds of German treated them as public outcasts. "It is though the law were Socialism." to say, 'you may hold your views, but your views are evidence Bolin responded to Alexander's earlier compar- of an attempt to violate the law,'" Alexander asserted. ison that linked the Cincinnati courtroom with the "gloomy Alexander underscored the serious dilemma courtroom" which existed in Czarist Russia. Directing his the American government experienced during the war: where comments to the jury, Bolin wondered if any courtrooms, did individual rights end and those of the national interest or "gloomy or bright," were being used in Bolshevik Russia. He "common good" begin? He believed the government assured the jury that they were not. remained determined to make examples of his clients so it The district attorney directed his most virulent could send a message to all Socialists and "progressive comments at Lotta Burke. Again he labeled her as a radical thinkers" that their views must be in accordance with the rest lecturer, a translator of German, a believer in the principles of society, and that every new belief or idea must be submitted of Socialism, and a person who "goes to the root of things." first to Washington and the controlling powers before it could Bolin argued that something was innately and fundamentally be advocated publicly. He questioned whether this was the wrong with any person who, born in America, fostered in democracy and the liberty for which soldiers had died on the American institutions, raised by American principles yet still battlefield. He emphasized that because this case began with opposed the United States' involvement in World War I. America's involvement in the war, it should likewise end with "There is some seed in their heart that was not properly it. "It was born in hysteria and overwrought public excitement, germinated and blossomed into the flowers of real patriotism and only the existence of hysteria and nerves can justify the and understanding of what it means to be an American continuance of a case so devoid of substantial evidence," citizen," Bolin preached. He was convinced that anyone who Alexander asserted. He went so far as to recommend that if harbored such perverse thoughts would not hesitate to print the government remained determined to prosecute, a charge or publish a handbill which denounced the government and of disorderly conduct or something similar should be leveled advocated class warfare. Bolin argued that such a caliber of against the defendants but not conspiracy to defraud the person could seek assistance from only one source: from a government. lawyer who possessed similar beliefs, who could coach his Winter 1988 An Appreciation of the Importance of Tolerance 13 clients; a man known to be a "Socialist of long standing." had safeguarded the method by which the views of any Alexander, aware of Bolin's insinuations, objected immedi- political party or individual could be brought to the attention ately and denied that he was a Socialist or known throughout of the leaders and the people. Hollister gloried in the rights the city as being one. After a lengthy altercation, Bolin guaranteed by the First Amendment: every person has the continued. right to be heard and to express himself in public; he has the He addressed the jury intending to dispel the right to publish his views freely, to assemble peaceably and anti-German prejudice with which Alexander accused him; to petition the government for a redress of grievances without but, at best, he only amplified the 100 percent Americanism fear of reprisal. However, he affirmed that the defendants were theme espoused during the war. Bolin proclaimed that those not on trial for being Socialists, Hollister quickly qualified "infused with German blood" were not disloyal as a class. On his tolerant position. "This is not the time and place to say the contrary, he took pride in coming from the same how far he may go in what he says or publishes," Hollister hometown as Edward Rickenbacker. He even praised the local asserted. Unfortunately, Hollister lacked the foresight and war hero, Fritz Galbraith, who Bolin stated not only had a failed to use this case as a forum for expanding the parameters first name of "German tenor," but arrived home "crowned of the First Amendment. Instead, he argued that no man or with the glories of his service." Bolin assured the jury that group of men has any right to belong to a political party which whenever he referred to the witnesses' German birth, advocated disobedience to the law. parentage, or blood, he directed it to those who had forgotten Hollister instructed the jury that when those "to leave behind in their Vaderland the ideals from which they calling themselves a political party put themselves in such a pretended to feel and have not become acclimated to the questionable legal situation, they were no longer members of freedom of our land and institutions." The district attorney a "political party" but instead were criminals. Perhaps explained a complex subject very simply. As long as German- realizing that he had passed judgment, Hollister qualified the Americans followed the United States government's orders pronouncement by stating his desire to depart from those and fought Germany, they were not considered a threat. The more or less "general observations" and allow the jury to arrive danger emanated from those Americans who opposed the war at a verdict.47 and utilized their constitutional right as citizens to voice Alexander employed numerous legal strata- dissent. Ironically, it was those who had "acclimated to the gems which delayed his formal filing for an appeal until May freedom" of America and its institutions that Bolin viewed as 1921. Another nineteen months passed before Alexander and a threat.45 Clark submitted their respective arguments to the United In his final effort to influence the jury's verdict, States Sixth Circuit Court of Appeals in Cincinnati. Bolin made a Freudian slip. Having just been overruled in Alexander's brief revealed the frustration he and his assistant attempting to quote Eugene Debs and running long over the experienced during the five previous years and their obvious allotted time, Bolin decided to close his final argument. "In displeasure with the trial verdict. "In coming before this court this case," he said, "there is for your consideration the justice with an argument for the reversal of the conviction and due to each of these defendants, who are, up to this moment, sentence," Alexander asserted, "counsel feels somewhat as presumed to be guilty." Judge Hollister immediately corrected they imagine lawyers might feel who were called on to argue Bolin's mistake. "I meant presumed to be innocent," Bolin before the courts of Massachusetts for a reversal of the Salem said. Unknowingly, Bolin had encapsulated the entire trial in witchcraft cases." Alexander believed that his clients' one sentence. Three hours later, on July 19, 1919, the jury convictions, much like those in Salem, rested on nothing but found all thirteen Socialists guilty of conspiracy to defraud a "myriad of trivialities, of delusions, of prejudicial the government.46 irrevelancies or even perjuries." The trial had not concerned Judge Hollister's handling of this case itself with evidence or proving guilt, Alexander continued. obviously was one-sided. He steadfastly and unabashedly The predilection of the jury, the prosecutor, and even perhaps supported Bolin's position. The best example, and the one the judge relegated the trial to a study in "fallacy and mass which clearly and objectively demonstrates Hollister's bias, psychology" rather than adhering to "the orderly proceedings occurred when he read the charge of the court to the jury. of law." The final reason concerned Bolin's unprofessional Hollister delivered an eloquent speech on the virtues of the conduct. Not only had he misread the indictment to the jury, Constitution and the ideals expressed in the Declaration of but he remained so "flagrantly prejudicial" toward the Independence. He reveled in the idea that the Constitution defendants throughout the proceeding that the court should 14 Queen City Heritage have permitted a new trial.48 In the government's brief, the He believed that the circular not only proved the intent of deputy prosecutor, James Clark, felt Alexander's reflections those who ordered its printing, but also acted as an integral of the judge and district attorney "unfair" and eulogized element of the intended conspiracy.50 Hollister's judicious manner and Bolin's professional Alexander had argued that the guilty verdict conduct. He then tried to refute Alexander's assertions by was not substantiated by sufficient evidence. Alexander utilizing legal precedence and selected trial excerpts to asserted that during the trial public opinion became so substantiate his position. He insisted that the trial constantly inflamed with war patriotism and anti-Germanism, "it was not guarded the defendants' interests and rights and that only after necessary for the government to prove the defendants' guilt, a fair trial were they found guilty. Clark concluded that but rather forced the defendants to prove their innocence." Alexander's accusations against the court and the district Donahue did not agree. Surprisingly, he argued that because attorney were fallacious and without substance and requested the trial occurred eight months after the war, the government that the judgment remain "undisturbed."49 lacked the need to convict the defendants in order to "fan the Two months later, on February 16, 1923, the flames of war patriotism." Donahue believed that no matter Court of Appeals upheld the lower court's decision. It was, how great the war fever was at the time of the defendants' however, a split decision. Judges Maurice H. Donahue and arrest, by the time of their trial "it was negligible." Donahue Loyal E. Knappen concurred with the lower court's findings failed to elaborate on how he concluded this "negligible" while Judge Arthur C. Denison dissented, believing only that fervor existed. Moreover, he did not consider the possibility the United States Supreme Court ultimately would decide that lingering war patriotism had fused, by the summer of what "conspiracy to defraud" meant. 1919, with a strong fear of Bolshevism.51 Donahue, writing for the majority, limited his Donahue completed his opinion by briefly opinion mostly to the legal and procedural issues that noting Bolin's alleged misconduct. Instead of reviewing Alexander raised. Although he understood that the Socialists' Bolin's actions throughout the trial, Donahue limited his arrest occurred during a time of extreme emotionalism, he discussion to one particular incident: when Bolin accused failed to grasp the significance that, even during such times, Alexander of coaching his clients. Donahue concluded that the Constitution should guarantee individual rights. He ruled because the trial sustained Alexander's objection and also that conspiracy to defraud the United States did not Alexander permitted the case to be submitted to the jury necessarily involve a direct loss of either property or money, without further protest, he "could not be heard to complain." but that it needed only "to impair obstruct or defeat the Ironically, Donahue did not address any of Bolin's other function of any governmental department." The government numerous defamatory and prejudicial statements. And, by was not required to prove when the defendants agreed to or blaming the defense counsel for agreeing with the court's entered into a conspiracy. The only thing incumbent upon the "reprimand" of Bolin, Donahue skillfully shifted the burden government to sustain the conspiracy charge was that the back to the victims. He summarized his opinion with a evidence demonstrated either a concert of action to perform statement mirroring the mood of the entire trial. "A number an illegal act, or that the facts and circumstances proved that of errors are assigned in reference to the admission and the overt acts furthered the conspirator's original plans. rejections of evidence," Donahue wrote, "but it is Donahue, therefore, accepted the handbill presented at the impracticable and unnecessary to review these in detail."52 trial as representative evidence of the 18,000 circulars printed. In the dissenting opinion, Judge Denison

AMERICAN CIVIL LIBERTIES UNION 100 FIFTH AVENUE, NEW YORK CITY

re"b. 27, 1923. Mr. Ed. F. Alexander, Atlas' Bank Bids, Cincinnati, Ohio.

My dear Mr. Alexander: Our attorneys have examined with interest the dis- senting opinionvjudge Denison, and thoroughly agree with you that the case dught to te taken to the United States Supreme Court. So I guess that ends the matter as far as we're con- cerned for the present.

Sincerely yours, In 1923 the Court of Appeals upheld the lower court's deci- sion, but it was a split decision with Judge Arthur C. Denison dissenting. ENB/IE Winter 1988 An Appreciation of the Importance of Tolerance 15 expounded not only on the narrow, legal elements of the case, but victory had its price. Alexander's determination to see that but he broadened the issue slightly to include civil liberties. justice prevail resulted in his ostracism in the legal community He argued that the lower court's decision should be as well as at local social clubs. It also strained and severed some overturned for he did not believe that disobeying the draft law of his personal friendships. And even though Alexander, as could be deemed as defrauding the United States. Denison he recalled later, was "rehabilitated to a slight degree" by the argued that the defendants believed both that the Selective Supreme Court's decision, he nonetheless retained the Service Act was unconstitutional and that their rights of free reputation of being "something of a Bolshevik."56 speech permitted them to voice their dissent. He said their Alexander's involvement with municipal ideas were "unsound," but because the Espionage Act was not reform antedated both the Socialists' trial and the reform in effect when the Socialists were arrested, no law prohibited impulse which emerged in Cincinnati after the war. He them from expressing their opinion. Instead, they were belonged not only to Herbert Bigelow's People's Church, a indicted under the conspiracy section of the U.S. Penal Code non-theological organization devoted to social and political mainly because the existing state of war made the Socialists' reform, but firmly supported Bigelow's belief in a more specific "conduct appear disloyal and intolerable." This was egalitarian form of representation known as proportional the first time anyone besides Alexander admitted that the representation. After the war, Alexander, along with other exigencies of war could possibly have influenced the Socialists' political activists, drafted a new city charter. Simultaneously, arrest and trial.53 Henry Bentley and other reform-minded citizens formed the After this brief reference to civil rights, Birdless Ballot League which also espoused changes in the city Denison turned to the concept of defrauding the United charter. Its major goal, however, concerned removing the States. He said that it could not be applied in this case because political party emblem on local election ballots and leaving there were not any supporting arguments which concluded just the candidate's name. Because they desired similar that defrauding occurred in the absence of deception or reforms, Alexander's group merged with the Birdless Ballot deprivation of property right. Denison then cogently League and formed the City Charter Committee. After summarized the case in one sentence: "Does one who stands agreeing to a new charter, they had to obtain enough upon his supposed right to refuse to obey an unconstitutional signatures on petitions in order to place the issue on the law thereby 'defraud' the United States if it turns out that the November 1924 ballot.57 law was valid?" Denison believed not, but confessed that the Because Alexander defended the thirteen legal definition of "defraud" ultimately would have to be Socialists, the local community viewed him as a Bolshevik decided by the United States Supreme Court. His belief sympathizer. This opinion pervaded the city to such an extent proved correct.54 that the Charter Committee leadership advised him against Encouraged by Denison's dissent and deter- participating publicly in the campaign for the city's charter mined to see justice prevail, Alexander filed for a review with government. Murray Seasongood, the leader of the charter the Supreme Court. On May 26,1924, the high court rendered reformers, expressed great concern about Alexander's name its decision. It ruled that Alexander's argument against the being used on the sponsoring committee's petition. trial court should have been sustained by the appeals court. Seasongood believed that too many people thought of Chief Justice William H. Taft limited his opinion, however, Alexander as a "Socialist and a dangerous radical." He did not to defining what "conspiracy to defraud" meant and applying believe that the new city government could afford to give the it to the Socialists' activities. He did not address any civil opposition the "opportunity to discredit the movement by liberties issues. Taft believed that it was unacceptable to labeling it with these terms." Alexander did not outwardly include within the legal definition of "conspiracy to defraud" protest. However, he made the leadership aware that if a mere open defiance of the governmental purpose to enforce Herbert Bigelow and his followers were asked to circulate the a law. Because the defendants did not utilize deceitful, new charter petitions, they probably "would circulate them dishonest, or crafty means to influence people to disobey a with greater confidence" if Alexander's name appeared on the law, they could not legally be indicted with conspiracy to petition as a sponsor. Guy Mallon, another powerful member defraud. Accordingly, the Supreme Court appropriately of the steering committee, agreed and Alexander's name was overturned the lower courts' decision, ending the Socialists' included.58 seven-year ordeal.55 The conclusion of this squabble, however, did The defendants and Alexander ultimately won, not signify Alexander's redemption in the eyes of city leaders. 16 Queen City Heritage Quite the contrary, he still was considered a "risk." After the actively supported the war effort looked with disdain at their charter movement's victory in the 1925 election, Alexander colleagues who defended the constitutional rights of those believed that he was qualified to serve as the new city solicitor opposing the war. Many pro-war lawyers exploited the due to his own experience and record as "chief counselor" and wartime hysteria to such an extent that they urged that those "technical director" of the charter movement during its less than 100 percent American be removed from the seminal period. Bentley informed Alexander that another profession. This intolerance only worsened in the early 1920's highly qualified individual already had been appointed, but as a result of the Russian Revolution and the government's that Alexander would be appointed the new solicitor's first fabricated Red Scare.61 assistant. And, Bentley added, the position would have a The United States Supreme Court failed to higher salary than originally planned. This action came as no address the civil liberties issues in the Hammerschmidt case. surprise to Alexander. He knew that "powerful forces" within It could easily have done so, and the fact that it did not should the charter movement disapproved of him because of this not obscure the contribution that Edward F. Alexander, and connections to Bigelow and the Hammerschmidt case. This others like him, made to enlarge the parameters of American became even more obvious when opposition arose over civil liberties. Alexander's appointment as first assistant. The same group that objected to Alexander becoming city solicitor opposed 1. Three days after war was declared, Cincinnati's government changed thirteen street names that had previously been in German. The public library his nomination as first assistant. Seasongood recommended removed German books and periodicals from its shelves, and the Cincinnati that Alexander take the clerk of council position. Alexander Eoard of Education ceased teaching the German language in elementary objected politely, telling Seasongood that "he was a lawyer schools. Additionally, a faculty member from the University of Cincinnati was dismissed in early 1918. For these events see, Daniel Hurley Cincinnati: and not interested in being clerk of council." Persistence and The Queen City (Cincinnati, Ohio, 1982), pp. 105, 107. For the national determination in the face of adversity again served Alexander scene, H.C. Peterson and Gilbert C. Fite, Opponents of War, 1917-1918 well, for on January 15, 1926, he was appointed assistant city (Seattle, Washington, 1957). Robert K. Murray, Red Scare: A Study in solicitor.59 National Hysteria 1919-1920 (Minneapolis, 1955), p. 34. 2. Paul L. Murphy, World War I and the Origins of Civil Liberties in the United These events did not mean that Seasongood States (New York, 1979), p. 31. and Bentley personally disliked Alexander because he 3. Peterson and Fite, Opponents of War, p. 11. Questions have been raised defended the Socialists. What it demonstrated, however, was concerning the content and substance of this remark. See Jerald S. Auerbach, "Woodrow Wilson's 'Prediction' to Frank Cobb: Words that city leaders placed pragmatic politics above principle. Historians Should Doubt Ever Got Spoken," Journal of American History, Their desire to relegate Alexander to the background was a vol. 54, December 1967, pp. 608-617. great disservice to Alexander and to the city. Little doubt exists 4. Robert H. Ferrell, Woodrow Wilson and World War 1,1917-1921 (New York, 1985), p. 207; Murphy, World War I and the Origin of Civil Liberties, pp. now that Alexander was truly a civil libertarian. Through his 122-123. It is interesting that during this period Edward F. Alexander was spirited defense of the underdog, he successfully fought a member of the local draft board in Cincinnati. injustices and prejudices present in America during World 5. Peterson and Fite, Opponents of War, pp. 14, 19; Murphy, World War I War I. and the Red Scare. He possessed the intelligence and and the Origin of Civil Liberties, p. 123; Joan M. Jensen, The Price ofVigilance (New York, 1968), p. 58. The American Protective League (APL) organized tolerance necessary to see the Hammerschmidt case for what in Chicago in March 1917, had units in 600 cities and a membership roster it truly represented: a case born of hysteria, prejudice, and of nearly 100,000. And by 1918 membership had grown to 250,000. Its intolerance of dissenting opinions. Unlike his myopic membership consisted of bankers, businessmen, attorneys, chamber of commerce leaders and insurance company executives. Because of their contemporaries, Alexander concerned himself with justice "high" position, they easily obtained information concerning despite the adverse consequences to this public career. More "troublesome" citizens, especially those who opposed the draft. There is idealistic than naive, Alexander successfully fought compla- conflicting evidence, but some sources believe APL members went undercover in order to "catch" the thirteen Cincinnati Socialists. All three cency and political conformity. "It was but natural," Alexander organizations were, as an historian stated, "highly conservative in recalled in 1965, "that in the popular mind I should be credited orientation, anti-alien in ideology, pro-business and anti-union in their with holding the views of my clients. However, I have survived politico-economic bias." For a complete analysis of these extra legal organizations see, Jensen, The Price ofVigilance. it all and am still on the job, with a better appreciation of the 60 The President and at least one cabinet officer became uncomfortable with importance of tolerance." the APL's manner of dispensing justice. Treasury Secretary William The cool treatment Alexander received from McAdoo expressed his dissatisfaction to Attorney General Gregory and his contemporaries for being a civil libertarian was not unique. forwarded a copy to Wilson. McAdoo believed similarities existed between APL and the Sons of Liberty which operated during the American It was symptomatic of what occurred to attorneys and others Revolution. "It [the Sons of Liberty] committed grave abuses and injustice," throughout the nation who held similar beliefs. Lawyers who wrote McAdoo, "[and] the API contains the same evil potentialities, Winter 1988 An Appreciation of the Importance of Tolerance 17 especially since it is operating under the sanction of the Department of Welker. Justice." McAdoo feared that because the APL had no standard membership 20. Ibid., pp. 623-626; "A 99er's Biography for 1924." Edward F. Alexander requirement, "thoroughly irresponsible and untrustworthy people" may Papers, Cincinnati Historical Society, Box 1, File 1. A native Cincinnatian, become members. McAdoo argued that Gregory's scheme was "fraught Alexander was born in 1877 and grew up in the Mohawk area. He attended with the gravest danger of misunderstanding, confusion and even fraud " Woodward High School and graduated in 1895 as class valedictorian. His Letter from William G. McAdoo to Thomas W. Gregory June 2, 1917. valedictory address ironically was titled, "The Unreasonableness of War." Wilson echoed McAdoo's sentiments, feeling "it would be very dangerous Edward F. Alexander Papers, Cincinnati Historical Society, Box 1, File 1. to have such an organization operating in the United States ..." and even He continued his education at Harvard, graduating in 1899 with a BA and wondered if there was any possibility the APL could be stopped. Letter earning his MA degree in 1900. Alexander returned to Cincinnati and from President Wilson to Thomas W. Gregory June 4,1917. Gregory replied taught Greek and Latin at the University of Cincinnati while studying for to Wilson's query by reiterating the patriotic mission of the APL, and his law degree, which he earned in 1906 from the College of Law. He encouraged that it be continued. After all, argued Gregory, "this is a belonged to several local organizations and was involved with some particularly bad time to discourage citizens who are spending their time important causes. He developed a fairly close friendship with the Cincinnati and money in patriotic and effective service for the common good." Letter reformer and originator of proportional representation, Herbert Bigelow. from Thomas W. Gregory to President Wilson June 14,1917. Wilson never Not only was Alexander a member of Bigelow's creedless fellowship, the pursued the matter. Arthur B. Link, ed., The Papers ofWoodrow Wilson, vol. People's Church, but also represented Bigelow in court in October 1917 42 (Princeton, New Jersey, 1983), pp. 440-446, 504-519. due to Bigelow being beaten by reactionary thugs and APL members. For 6. Peterson and Fite, Opponents of War, p. 26; The Cincinnati Enquirer, June an accounting of this incident see, Herbert Shapiro, "The Herbert Bigelow 1,1917; Murphy, World Warlandthe Origin of Civil Liberties, p. 79. Wilson's Case: A Test of Free Speech in Wartime," Ohio History, vol. 81, Spring 1972, Flag Day address only served to heighten the growing sense of intolerance. pp. 108-109. Regardless of Wilson's initial trepidation at using brute force, some 21. Adolph Germer to Edward F. Alexander July 5, 1917, Edward F. historians believe his speech revealed his true feelings concerning domestic Alexander Papers, Cincinnati Historical Society, Box 1, File 7. enemies of war. By implying that all dissent was disloyalty, Wilson's address 22. The Cincinnati Enquirer, June 3,1917, p. 3; Murphy, World War I and set the tone of administration policy toward civil liberties during the war: the Origin of Civil Liberties, p. 116. The government incarcerated Burke in "Woe be to the men that seek to stand in our way in this day of high the Hamilton County jail moving her later to Montgomery County jail resolution when every principle we hold dearest is to be vindicated and made where apparently she encountered some abuse. Hammerschmidt remained secure for the salvation of the nations." in Hamilton County jail until June 25 when he was released on $9,000 bail. 7. Murray, Red Scare, p. 19; Murphy, World War I and the Origin of Civil Joseph Sharts, Alexander's assistant in the case, visited Burke at the Liberties, p. 143. The Socialist candidate in Dayton received 44 percent of Montgomery County jail and was appalled. Perhaps a little melodramatic, the vote, in Toledo he received 34.8 percent, and in Cleveland the candidate Sharts nonetheless reported to Alexander: "There is some danger to her received 19.3 percent of the vote. The membership rosters of the Socialist from the other prisoners, men shut up with involuntary celibacy, who would Party in Cincinnati totaled 300 members. This was the second largest in spring upon her like wild animals if half an opportunity was afforded.... the state. Cleveland had the greatest number of members with 1,575. that unless she is furnished the security of female companionship with the However, if one includes the members of Dayton (228), Hamilton (282), consequent peace of mind, she is going to die or go insane." Joseph Sharts Warren 128), St. Bernard (18), and Norwood (53), the Southwest Ohio to Edward F. Alexander, no date, Edward F. Alexander Papers, Cincinnati region totaled 885 registered members. Edward F. Alexander Papers, Historical Society, Box 1, File 7. Cincinnati Historical Society, Box 3, File 16. 23. Hammerschmidt et al, pp. 5-6. Tom Foster, the owner of Queen Card 8. Murray, Red Scare, p. 20. Company, was never charged for printing the handbill order. 9. Thomas Hammerschmidt et al, v. The United States of America, 287 Federal The grand jury indictment of October 20,1917, specifically stated that the 817 (1923), p. 8. (In some correspondence and references his name is spelled defendants entered the "conspiracy" on or about May 27 when both "Hammerschmidtt.") Hammerschmidt and Burke ordered the printing of 50,000 "for themselves 10. Ibid., pp. 453-455. and the other defendants." 11. Anti-conscription handbill, Edward F. Alexander Papers, Cincinnati 24lbid., pp. 36-38. Alexander vigorously attempted to ask all prospective Historical Society, Box 1, File 1; Hammerschmidt et al, pp. 452-586. jurors whether they belonged to the American Protective League (APL). 12. Ibid., pp. 406-455. Out of the twelve jurors finally selected five were not asked, five responded 13. Ibid. they were not APL members, and the judge refused to allow two to be 14. Ibid., p. 472. queried about their membership. District Attorney Stuart Bolin strongly 15. Ibid., pp. 474-477. objected when Alexander asked one of the jurors if he belonged to the APL. 16. Ibid., pp. 335, 364, 374. There was nothing unusual in this procedure. Bolin believed Alexander could question prospective jurors as to whether In fact, it was customary for the Socialists to have bundles of literature they performed a patriotic service during the war, but he felt that since the delivered to various businesses or homes, whereupon the literature agents APL was a secret division of the Justice Department, membership disclosure would distribute them within their ward. should not be required. The court concurred. Alexander voiced the first 17. Ibid., p. 547. of many objections. 18. Ibid., pp. 210, 364, 409-410, 478, 604. "There was one man," Burke Alexander objected to this reasoning, but Judge Hollister stated that he recalled, "who insisted on me giving him a leaflet or some leaflets to could have made "the questions as broad as might be necessary to cover distribute. I told him we had no leaflets to distribute." Burke later any activity." The only limitation, Hollister argued, was that Alexander recognized this man as one of the deputies who took her to the Hamilton "could not specifically ask a prospective juror as to membership in this County jail. Hammerschmidt, too, recalled seeing and talking with both particular organization." However, it is interesting that Alexander was able Calvin Weakley, a special agent of the Department of Justice, and Walter to ask prospective jurors as to whether they were members of the Knights Knapp, a clerk to the U.S. Attorney, at the mass meeting. of Columbus or if they sold government war bonds. 19. Ibid., pp. 365, 633, 647, 668. The other five Socialists were William 25. Ibid., pp. 27-29. Gruber, Frank Reis, Frederick Schneider, Charles Thiemann, and Alfred 26. Ibid., pp. 93-100. 18 Queen City Heritage

27. Ibid., pp. 211-215. $3,500 bail, and so from this point forward, none of the Socialists spent 28. Ibid., pp. 217-219. Only after repeated questioning for two hours by any time in prison. federal authorities in the DA's office did Foster confess to printing the 47. Ibid., p. 785. handbill and thereby participate in the "conspiracy." Although there are 48. Ibid., pp. 1-2, 68-69. Alexander purposely delayed filing his appeal due no records to support the idea the government made a deal, it is a fact that to the "reactionary" environment existing during this period. He hoped for Foster, by not being arrested and by becoming a witness for the prosecution, a time when a truly fair hearing could be conducted. failed to be named in the indictment. Possibly the DA felt it would be more 49. Ibid., pp. 1, 18. Judge Hollister died after the trial ended and before advantageous, in light of the government's emphasis on suppressing sentencing. He was succeeded by Judge John W. Peck. dissent, to arrest thirteen people for conspiracy instead of just one man. 50. Thomas Hammerschmidt etal. v. The United States of America, 3585 Federal 29. Ibid., pp. 223-225. It seems strange that a mere clerk could be a member Sixth Circuit (1923), pp. 4-8. of the arresting team, for this demonstrates only further the reactionary 51. Ibid., pp. 8-9. spirit existing in this crisis period. 52. Ibid. Alexander could have had a negative connotation work to his clients' 53. Ibid., p. 9. Section 37 of the Penal Code is as follows: "If two or more advantage if he would have read a copy of the paper. The Cincinnati persons conspire ... to defraud the United States in any manner or for Volksblatt supported Wilson's war policy and believed that "all citizens must any purpose, and one or more of such parties do any act to effect the object comply with the duties arising out of the state of war." See "German- of the conspiracy, all the parties to such conspiracy shall be liable." American Thoughts on America at War," Literary Digest, April 14, 1917, 54.7^. pp. 1051-1052. 55. Thomas Hammerschmidt et al. v. The United States of America, 254 Federal 30. Hammerschmidt et al, p. 269. The items found on Rothenbusch were United States Supreme Court (1924), no page number. EdwardF. Alexander as follows: A red Socialist party membership card; a list of registered voters Papers, Cincinnati Historical Society, Box 1, File 7. Taft believed the from Cincinnati's German district, the tenth ward; a copy of the local meaning of "defraud" had been given a much wider meaning in some states Cincinnati Socialist Party constitution, dated 1913; Socialist Party than it should have. membership and application forms; a state of Ohio and local Cincinnati 56. Edward F. Alexander Papers, Cincinnati Historical Society, Box 2, File Socialist Party membership card; and a memorandum book with a 11. newspaper clipping folded inside. 57. Iola Hessler Silberstein, Cincinnati Then and Now (Cincinnati, 1982), 31. Ibid., p. 269-270. pp. 187-188. 32. Ibid., p. 447. 58. Edward F. Alexander Papers, Cincinnati Historical Society, Box 2, File 33. Ibid., p. 665. 11. 34. Ibid., pp. 510, 513-514. Mrs. Durand testified that because of the war 59. Ibid. the group decided to change its name in 1916 to the Federal Press Society. 60. Ibid., Box 1, File 1. While Alexander suffered for his convictions, another 35. Ibid. Cincinnatian who held similar views did not. For sixteen months, attorney 36. Ibid., p. 488. Alfred Bettman served in the War Division of the U.S. Department of 37. Ibid., pp. 490-498. Justice as special assistant to the Attorney General, and was responsible for 38. Ibid., p. 498. reviewing all cases arising from conviction under the Espionage Act. On 39. Ibid., pp. 470-472. many of these cases Bettman advised either clemency or, if conviction was 40. Ibid., pp. 140-145. warranted, that the sentence be commuted. 41. Ibid., p. 16. Bettman performed his duties very responsibly and judiciously, and earned 42. Ibid., pp. 276-278. The platform's major tenets consisted of the following: the admiration of both Attorney General Thomas Gregory and ACLU advance the interests of the working classes; espouse economic and political President Roger Baldwin. Indeed, Gregory praised Bettman's work and rights for women; enact an eight-hour day; legalize the right to strike, wrote that "it was marked by loyalty, consistency of purpose and more picket, and boycott; prohibit the use of military and police power to break intelligent patriotism." Bettman realized, much like Alexander, that so many strikes; and increase the public school system's efficiency. These tenets could of the cases' convictions resulted from the reactionary war atmosphere hardly be viewed as "radical" or "Bolshevik inspired." As early as 1918 existing in America. In April 1929, Bettman wrote a letter to President Woodrow Wilson strongly encouraged the adoption of the eight-hour work Hoover requesting that he issue a "general proclamation of restoration of day, and in 1920 the government ratified the 19th Amendment giving citizenship." Bettman believed that "a large part of the offenses which women the right to vote. Within little more than a decade the government resulted in prosecution and conviction were of a type properly denominated guaranteed labor's right to organize and strike. as political." He argued that after ten years America had regained its "sense 43. It is interesting that while the court record includes all of Bolin's closing of proportion" and should be able to recognize the real nature of the cases arguments, it failed to transcribe any of Alexander's closing remarks. which arose as a result of the war. 44. Closing Arguments in the Hammerschmidt Case, Edward F. Alexander For the purposes of this article, however, it is obvious that Bettman did Papers, Cincinnati Historical Society, Box 1, File 7. not suffer for his tolerant and judicious positions regarding free speech 45. Hammerschmidt et al, pp. 747-770. mainly because he was viewed as an extension of the government. His views 46. Ibid., pp. 776-777. Alexander's legal maneuverings delayed sentencing and recommendations usually had the support of his boss, Thomas Gregory. until February 1920. Hammerschmidt and Geier each received a sentence Unlike Alexander, who acted alone and was surrounded in a hostile of fifteen months in the Atlanta penitentiary. Burke received an equivalent environment, Bettman was insulated from public scrutiny during the war sentence but was ordered to serve it at the women's penitentiary in Jefferson years and often acted on his own without fear of reprisal. By no means City, Missouri. Thieman, Reis, Schneider, Gruber, Feldhaus, and Gregory should Bettman's contribution be considered lightly. In 1919, Bettman left were sentenced each to one year and one day in the Atlanta penitentiary. the government, voiced disapproval of the Palmer Raids, and even testified Rothenbusch, Tiedtke, and Hahn each were fined $150 and ordered to against a House Subcommittee considering a Federal Sedition Act. Indeed, spend three months in the Hamilton County jail. Welker also was ordered his work with the Justice Department is worthy of more research. Alfred to spend three months in county jail, but fined only $100. Because Alexander Bettman Papers, University of Cincinnati Archives, Box 48, Files 32-43. intended to appeal the decision, each of thirteen Socialists was released on 61. Murphy, World War I and the Origin of Civil Liberties, pp. 193-194.