Judging the Chicago Trial
Julius Hoffman, Thomas Foran, William Kunstler, Tom Hayden, David Dellinger, Rennie Davis, Bobby Seale, Abbie Hoffman, Jerry Rubin—these are, like Spiro Agnew, household names we owe to the benighted summer of 1968, though we have acquired them gradually since. We could do without them, but we can’t. The Hoffmans, Foran and the rest, with John Froines, Lee Weiner, Richard G. Schultz (like Foran, a federal prosecutor), Leonard Weinglass (like Kunstler, a defense lawyer), plus a jury were the cast, of course, of the Chicago convention-riots trial of 1969-70.
The defendants, or some of them, may well consider that on the whole they profited from the trial. They achieved, they may believe, a political objective. “The scene of a political trial,” Tom Hayden has written, “should extend into the final courtroom of public opinion.” Charges such as those lodged against the Chicago defendants “should be tried in the media. . . . In this way we take the legal camouflage off repression and expose it for what it is. We create a sympathetic climate of opinion that the government must either placate or alienate. We exercise political influence on the higher courts. If we are acquitted by a jury of the people, then the government becomes the criminal, even if we are in jail.”1 J. Anthony Lukas, who covered the trial for the New York Times, reports:
But here [in contrast to the earlier Spock trial] the defendants did more than merely accept the government’s challenge to a political trial. They welcomed it. There wasn’t much going on in the radical movement, anyway. The SDS was hopelessly splintered and ineffective. Winter was coming on and there wouldn’t be any campus uprisings for a while. So the defendants determined to make the trial the central radical event of the year. They saw it as an opportunity to radicalize people around the issues of the courts and the law.2
Who knows how many people were indeed radicalized by the trial, as by the events in Chicago in the summer of 1968. But if many were radicalized to the Left, others were radicalized to the Right. Like all politicians, Hayden tends to overestimate and overdramatize his potential constituency. He can say, for example, that Richard Nixon “entered office as an illegitimate President, without a shred of authorization from the blacks and the young.” Mr. Nixon did get very little of the black vote, but it is notorious that both the President and George Wallace got plenty of votes from young people—the young who do not follow Hayden, and never would.3 Yet some part of Hayden’s objective was undoubtedly attained. Many people have come to look upon the Chicago trial as an instance of repression, a gross indecency committed by their government. Two of the defendants were altogether acquitted, all were found not guilty of the conspiracy charge, and the whole case may be won in the end. The convictions that were handed down may well be reversed on appeal, and the contempt sentences imposed on the defendants and their lawyers vacated. But an aftertaste will linger; in some indeterminate number of people the vague notion that authority in America is somehow illegitimate will have been newly planted.
Now, the argument can be made that the Chicago trial was an exercise of illegitimate authority because it was lawless by the standards of the legal order professedly applicable to it. Or the trial can be condemned on the ground that it exemplified a legal order which is itself iniquitous, illegitimate, and incapable of generating the proper criteria of judgment. Or, to be sure, the trial can be condemned on both grounds. Even so, the question whether the trial was lawless and the question whether the American legal order as a whole is unjust and not worthy of respect are separate questions.
Tom Hayden, in his book on the trial, treats them as separate:
The main point is that the Chicago conflict could not be simplified, as it was in the press, to one of free speech versus respect for the law. By defining the question as one of free speech, many of our supporters were making a major liberal mistake. They opened themselves up to a common-sense conservative criticism: free speech is all right, but not obscene epithets shouted at police. Liberal sympathizers were being forced, in effect, to defend our right to shout “Fire!” in a crowded theater. In reality, the government, not the radical left, has become a “clear and present danger” to our common security. In this situation radical action has to be defended, not on the basis of civil liberties, but on the basis of the principles embodied in the Declaration of Independence.
In a more pretentious and less candid book, Jason Epstein4 fudges what Hayden makes clear. Epstein means to reach a different audience, and he can’t afford Hayden’s uprightness. He must make the “major liberal mistake,” or else the liberals will see through his major revolutionary mistakes.
Epstein never appears in his proper person, never speaks unambiguously in his own voice. He was there, out in the open in his proper person, in Chicago during the trial. It was Epstein, Anthony Lukas reports, who arranged to startle Judge Hoffman with the presence of his namesake Abbie at lunch one day. Judge Hoffman was in the habit of taking his lunch at the Standard Club, which is said to be a Jewish club, and evidently the plushest in Chicago. Not unnaturally, Epstein—no revolutionary, but a vice president of Random House, which published his book—had access to the Standard. He invited Norman Mailer, Jules Feiffer, and Lukas to lunch there with him. But Mailer wanted to go eat with Rubin, Abbie Hoffman, and Kunstler. “Bring them along,” Lukas reports Epstein as saying, “with an impish grin.” Along they came, and were treated to the spectacle of Judge Hoffman fleeing hastily at sight of them to a table behind a pillar. But in the book neither the impish nor the partisan Epstein is overtly present. He merely reports what the defendants and others thought or said or did, interrupting himself only, every so often, to survey an aspect of legal and political history, or to explicate a point of law. He is nothing but the impartial, dispassionate observer and savant.
The savant’s encyclopedic knowledge comes—though often not quite straight—out of an encyclopedia, and the impartial observer is given to argument by insinuation and sleight of pen. Epstein writes, for example, that Chief Judge Campbell’s conduct in handling the grand jury that indicted the defendants was reprehensible, “especially since, as was later to become known, Judge Campbell’s plan was that he himself would preside at the trial. . . .” But it never later becomes known to us. And how could it? And how could Judge Campbell have hoped to carry out his plan under a system which assigns judges to trial automatically? The unfounded insinuation is simply that Judge Campbell planned to cheat. Again, in a convoluted paragraph, Epstein suggests that perhaps fudge Campbell engineered the indictment because he was looking for “further judicial or political advancement,” which is asinine as well as gratuitous, since the judge was just about sixty-five, and a Democrat to boot. Or: Epstein believes that the government listened in on telephone calls Bobby Seale was allowed to make from jail. A few pages after he has told us this, Epstein reports a colloquy between Judge Hoffman and Kunstler about Seale’s desire to represent himself. “I am not fooled by all this business,” the judge says, and Epstein adds: “leaning across his bench, as if perhaps he too may have become aware of Seale’s intercepted conversations from jail.” That is some very eloquent leaning across a bench! Moreover, the phrase “he too” is notable. The reference is to assistant prosecutor Schultz, who we learned a few pages back “may” have known about the intercepted conversation at this time because there is evidence that he knew of some such conversations, and made them known to the court, five months after the trial was over. Or: Why did the head of the intelligence division of the Chicago police department warn his superiors in August 1968 that serious disturbances might develop around the convention? Well, he “may have” relied on reports of a newspaperman who had spoken in the same sense to an assistant of the mayor, who “presumably” passed the information on. But “probably” he got his notions from the FBI, since—would you believe it!—an FBI agent actually visited Chicago and talked to the police about the Panthers the preceding April. In Epstein’s account Judge Hoffman seldom disagrees with contentions made before him by the defense; he ignores them. A new dictionary entry is needed for ignore: to reject, disagree (as I ignore you); in law, to overrule, deny (a motion), decide, make a ruling; [Archaic] disregard deliberately, pay no attention. Defense lawyers, on the other hand, hardly ever argue or contend; they explain.
I will try to deal presently with some of the legal issues that Epstein raises. But they are intertwined with assertions of the immorality and illegitimacy of the society and its legal order, and these assertions need to be looked at first. They raise a prior question and a more resounding one, capable after all of quite overwhelming any legal issue, let alone hopelessly confusing it. Our attention is directed to the illegitimacy of the legal and social order very near the beginning of Epstein’s book in a curious passage about the Weathermen, who staged a Kristallnacht in Chicago shortly after the trial had started, having previously—although there is no certain proof of this—dynamited the statue of a policeman in Haymarket Square (a deed since repeated) . The Weathermen, says Epstein, unlike certain more moderate, or perhaps more prudent, or perhaps again more rational, radicals, “were determined not to argue with a dying culture, but, no matter how feeble their present means, to try to kill it.” Death was. much on their minds. “Dig it,” Epstein quotes Bernadine Dohrn,5 one of the Weathermen leaders, speaking about the Los Angeles murders of which Charles Manson and others stand accused: “First they killed those pigs . . . then [the killers] ate dinner in the same room with them; then they even shoved a fork into a victim’s stomach. Wild!” The reader may be satisfied that he can appreciate this remark unaided, and be puzzled only at why he is solemnly presented with it at the opening of a book about the Chicago trial. But Epstein goes to great lengths to help us understand what Bernadine Dohrn had in mind. She intended no more, it may be, Epstein writes, than to emphasize the hypocrisy of a society which deplores the Los Angeles murders “while collectively it murders Vietnamese and brutalizes its own poor”—from which the conclusion would be drawn that the victims in Los Angeles, “being white Americans, got no more than they deserved, in Miss Dhorn’s view.” This thought is left pending. Epstein is far from dismissing it as implausible, let alone unworthy. But one gets the feeling from what follows that he regards it as a bit trivial. For Miss Dohrn’s “celebration of murder,” he goes on to tell us, reflects also another—plainly we are to think more profound—concern of the Weathermen: “that their instinctual sources of aggression have been illegitimately taxed by a culture that has perverted and collectivized these energies and converted them to purposes of mass killing, leaving its individual members psychologically feeble and thus unable to confront their brutal culture with sufficient force.” Bernadine Dohrn echoes, says Epstein, the passion with which such writers as de Sade and D. H. Lawrence attacked sexual repression. “Like these enthusiasts for sexual self-determination, Miss Dhorn and her followers may feel that society has stolen from its members an important part of their instinctual capital, and that to regain these resources is essential not only to their personal survival, but to the survival of the species.”
To recapitulate and try to translate, then, American society is so immeasurably culpable that random murders of any of its white members can be perceived as just. What is more, part of the society’s culpability is that by engaging in war and in other unnamed acts of collective “brutalization,” it has denuded its members of the capacity to commit individual murders, personal crimes. This capacity needs to be recaptured. It is necessary now to restore the autonomy of the individual’s instinct to kill.
If this is where we have gone wrong—if, to put it plainly, the Los Angeles murders are admirable and the laws that forbid them immoral and unjust—then it cannot be that Epstein is really very interested in determining whether the Chicago trial was conducted in violation of or in obedience to the laws of such a society. But, of course, Epstein is merely reporting. It is not Jason Epstein there on these pages of his book. It is Bernadine Dohrn. It is not even the defendants in the Chicago trial, who joined with the Weathermen in their condemnation of the society, but who parted company with them when it came to love of murder. Yet the parting of company was only tactical, Epstein tells us. “What the Weathermen represented for the defendants was a tactical and ideological dilemma, not unlike what the defendants themselves presented to the liberal generation of which they were in turn the frustrated and bitter heirs.” And—though the moral problem is of a different order of magnitude—not unlike what Joe McCarthy presented to Robert A. Taft and other respectable Republicans who were heard to say that they agreed with McCarthy’s objectives, were unhappy about his tactics, but would observe them in silence so long as he was good for the Republican party. Nor unlike, indeed morally quite like, what the Stalinists thought Hitler should represent for Western popular fronts in 1939—a matter, said Molotov, of taste.6
The Weathermen and the Chicago defendants were at one, and believed themselves at one with great masses of young people, Epstein reports, in their allegiance to certain ideals, “the true and ancient ideals of the republic,” and in their conviction that these ideals “had been corrupted by . . . usurping politicians,” who exercised “illegitimate control of the nation’s destiny,” and were cruelly and greedily imposing “their debased civilization upon the people of the world.” No more than the Weathermen were the Chicago defendants opposed merely to the war in Southeast Asia, or even merely to the “brutality of domestic life.” These were after all only symptoms. The cause of all American evils was “the native culture itself, a profound and probably incurable disease that had destroyed the hopes and dignity of the people.” The political system and the cultural processes that bred it had lost their “claim on the faith of the people,” and had to be extirpated. The defendants “hated,” Epstein tells us, the political economy, and above all the moral system which they viewed as an expression of the Puritan tendency in Christianity; and they were intent on purging themselves and the country of their “corrupt inheritance,” and incidentally, of course, also of “their despised rulers.”
Such is the statement of this highly charged emotional position. Of evidence or argument to support it there is next to none. It is common knowledge, one gets the impression, that the civilization is debased and that life in the United States is brutal. There is a fleeting reference to the nation’s failure “at last” to undertake the “programs of domestic reform that had been promised by John Kennedy in 1960,” which is a misrepresentation, since most of the promises made by John Kennedy were redeemed by his successor. There is a reference also to the killing by Chicago police last December of two Black Panthers, which is probably well taken, as that was most likely an outrage. But we are then assumed to know—which is rather another matter—that the killings in Chicago in December were no isolated incident, but part of a “general plan,” conceived and executed by the federal government, together with local police, “to destroy the Panther party” by illegally repressive and presumably also murderous means. For has not the Vice President called the Panthers an “irresponsible, anarchistic group of criminals,” has not the Justice Department sent a lawyer around to assist local authorities to prepare indictments, have not Panthers been indicted in New York for a conspiracy to bomb department stores, were not Panthers, including Bobby Seale, indicted in New Haven for the murder of Alex Rackley, and have there not been raids in other cities, even if no killings?
But Vice President Agnew has hurled his maledictions in only slightly less incendiary language at others as well, and his speeches, while deeply regrettable—as are the considerably more incendiary speeches of the Panthers themselves—fall short of illegally repressive, let alone murderous, official action. A trial in New York will ultimately give us clearer indication than we can now have whether or not a conspiracy to bomb department stores did exist there. And Alex Rackley was murdered by Panthers, as a trial in New Haven has demonstrated—a trial fairly conducted to everyone’s satisfaction including that of the defendants, despite the celebrated skeptical prejudgment of the President of Yale. Whether the murder was committed on the orders of Bobby Seale remains to be proved, or not proved, at yet another trial in New Haven. There is no basis in known facts for the implication that raids on Panther headquarters other than the fatal one in Chicago were concerted and were all equally unlawful and outrageous. Panther establishments are virtual arsenals, Panther rhetoric is consistently violent, and Panther activities, as at least the New Haven trial showed, can sometimes be of legitimate interest to law-enforcement agencies. If Panther headquarters get raided more often than Christian Science Reading Rooms, the explanation is not necessarily to be found in a conspiracy to repress the party and murder its members.
The assumption that murderous repression is all about us is buttressed by reminders, sometimes quite lengthy, of such earlier events as the Hay-market riot of 1886 in Chicago and the resultant trial, Star Chamber proceedings in 17th-century England, the Rosenberg atom-spy case of the early 1950’s, the Reichstag fire and the trial of Dimitrov in Hitler Germany in 1933, and the suppression in the Plymouth plantation of the sect of Merry Mount Maypole dancers. Only witch burning and the Inquisition are missing. These events are themselves not closely analyzed, and their relevance to the present state of American society is left essentially to the imagination of the reader. They are simply evoked as guilt-inducing devices—guilt by historical association. Always insinuating from somewhere behind the bright light and never confronting us directly, Epstein seeks to wrest a confession from us by an extension of the technique Koestler reconstructed in Darkness at Noon. Epstein has occasion—what, in 433 pages, does he not take in vain?—to indicate that he doesn’t think much of Lincoln’s plea in his First Inaugural that men allow the “mystic chords of memory, stretching from every battlefield and patriot grave to every heart and hearth-stone on this broad land . . . [to] swell the chorus of the Union,” and so preserve it. But he has no hesitation in swelling a chorus of guilt and of hate of self and of others by touching the mystic chords of distorted and inapposite memory.
Conspiratorial assumptions7 and fake historical analogies are necessary because the real ills of American society are a powerful argument for action and perhaps even for structural reform, but they are not, Epstein must after all sense, a sufficient argument for revolution. And the argument is for revolution, not reform.
Ills there are. There is poverty, and misery, and injustice. There has also been, in the past decade, let alone in the twenty-five years since the end of World War II, progress which has given us an unprecedented degree of material well-being, quite probably an unprecedented measure of economic equity, an unprecedentedly open, mobile, and free society, and very substantial advances in social justice. One may be proud as well of a society which has put man on the moon. But there is no point in a recital of achievements. All that can be proved is that we are entitled to high hopes. Yet revolutions are born of hope, not of despair, even though they need the rhetoric of despair to justify the dirty work by which they are made. The question about a revolution, therefore, is not what has it despaired of, but what are its hopes?
For the moment, our revolutionists offer us hatred. They despise and dehumanize the persons, and they contemn the concerns, the aspirations, the daily lives of the vast majority of their countrymen.8 They offer for the future, so far as Epstein or Hayden or anyone else has been able to make clear, the Maypole dance and, in considerable tension if not contradiction, a vision of “liberated” masses tramping the earth shoulder to shoulder and abjuring profit, competition, personal achievement, and any form of gratification that isn’t instantly and equally available to all others as well. “Disobey your parents,” a pamphlet issued by the Yippies, Abbie Hoffman’s and Jerry Rubin’s group, urges the young. Rubin himself has been heard to advise them to go home and kill their parents. “Burn your money,” the pamphlet continues as quoted by Epstein. “You know life is a dream and all our institutions are man-made illusions, effective only because you take the dream for reality. Break down the family, church, nation, city, economy, turn life into an art form and theater of the soul. What is needed is a generation of people who are freaky, crazy, irrational, sexy, angry, irreligious, childish, and mad . . . who lure the youth with music, pot, and acid . . . who redefine the normal. . . . Burn your houses down and you will be free.” Hayden has remarked that “beautiful sentiments are expressed in that statement.”
Suppose millions upon millions of us cannot be persuaded that we would be happier if we freed ourselves of the achievement ethic, or happier traipsing over a green hill than swilling beer in front of the TV, does that entitle a band of people who are seized of a higher vision to coerce us into conforming to it? Never mind that the vision is anti-intellectual, that mind and art are to be leveled, that the spirit will suffocate as Rubin and Hoffman free it to redefine the normal. How will we maintain material conditions, let alone improve them, if we all quit the miserable, debased production of goods which now obsesses us? Who will mind the store while we dance in the streets?9 These are silly questions, and it puts one in a ridiculous light to ask them. For the answers are obvious. Those of us who insist on striving and on swilling beer don’t really know what we want, and the revolution, though perhaps initially forced on us, will show us that we didn’t know what we wanted, and will enable us freely to want what we should. And we won’t be dancing in the streets all the time by any means. We will be fulfilling ourselves both at work and at play, and those of us who play too much will be told gently, persuasively, but in the end firmly by our new leaders (positioned not above us, but side-by-side with us) that for our own and the common good we ought to work more and play less. And we will do it gladly, for the society will be ours, not the CIA’s, as it is now. When we work, we will all be doing the work that fulfills us, not some task to which we have been arbitrarily assigned, and if we fall into some individual error about what work really does fulfill us, we will be shown our mistake, we will see it, and proceed to do what we ought to do.
It all rings true. A system can surely be built that will seem to the group in charge to meet the description given by a young lady named Linda Morse as a defense witness at the Chicago trial: a system “that cares about people living adult lives that are responsible, fulfilled adult lives, not just drudgery, day after day going to a job; one that gives people a chance to express themselves artistically and politically and religiously and philosophically.” It is only that there is a name well-known to the human race for the means that have to be employed to create such a system and keep it satisfactory in the eyes of its creators and leaders. That name is tyranny. We are all and always in some measure coerced by our needs, by the needs of others, by our individual capacities and ineptitudes, by our culture, and by institutions and other man-made complexities of life. Our freedom, as Holmes said of judges, may be more molecular than molar, and it is more political than personal. But we would all recognize tyranny when we saw it.
For defendants committed to such a revolution, interest in the legality of the Chicago trial was spurious, as the interest of their apologists and outriders is specious. But the legal order the defendants despise persists and may survive them. And from the point of view of those who give it their allegiance, the question of the legality of the trial is of the greatest moment.
Early on, we are told by Epstein that the defendants viewed the trial as political, and are led to infer that political trials are by definition without the law. Innumerable other people, including Anthony Lukas for one example, use this term loosely. If all that is meant by a political trial is one that has political consequences, or one that is occasioned by a crime which in turn had a political aspect, then the term, epithet that it is, does not say much; all kinds of ordinary trials and crimes have political consequences and aspects. The trial and crime of Sirhan Sirhan did. So did the crime of James Earl Ray. In Epstein’s usage, however, the term means something more, something sinister, if obscure.
“Not only did the defendants know,” writes Epstein, “that [Bobby] Seale had been thrown together with them as the result of a political decision by the Justice Department to ‘get’ the Panthers, but that the federal indictment itself was consistent, they knew, with Nixon’s campaign promise to restore law and order to the country.” But the Justice Department’s “political” decision to “get” the Panthers—if there was such a decision, which the defendants surely more surmised than knew—is unexceptionable so long as it was a decision to “get” the Panthers for conduct that makes them legally liable to arrest and prosecution, and that has exposed and would expose others to arrest and prosecution. There is no evidence of any different sort of decision taken in the Justice Department. No doubt even a legitimate decision to “get” the Panthers may be political in the sense that the administration thought there was credit to be gained for launching such an enterprise. But our prosecutors are political officers. We invite them to be zealous in the enforcement of the criminal law by holding out a political reward for their zeal. We do not expect all our laws to be enforced with equal vigor all the time. There are too many laws for that, and prosecutors, therefore, have discretion. We demand that in the exercise of their discretion, they act against individuals without fear or favor, but that in each individual case they proceed only if in their best professional judgment the evidence of guilt is convincing and will hold up. Prosecutors are politically rewarded for zeal, but they are to be zealous for justice, not for political reward.
Suppose, now, that as happened to Dr. Spock and others following their trial in Boston a couple of years ago on charges of conspiring to aid draft evaders, and as happened qualifiedly even to Dr. Spock’s co-defendant William Sloane Coffin, Jr., who could have been reprosecuted but has not been—supppose that the Chicago defendants and their lawyers succeed on appeal. What will the episode have told us about our law? Like Dr. Spock, these defendants would then have been wrongly subjected to the expense and ordeal of a trial and appeals. But the trial and the appeals are the safeguard of an adversary system of criminal justice, which sustains a presumption of innocence until after conviction. The alternative, considered more oppressive by the framers of the American Constitution, is an inquisitorial proceeding that would establish a higher probability of guilt—easily converted into virtual certainty—before trial. The trial is the cost the adversary system exacts. To be found not guilty is to have an injustice committed on oneself, and the system commits the injustice of finding people innocent in a certain percentage of cases every year, the vast majority of them, of course, having no political content or implications whatever. The prosecutor must have a plausible case to start with, and the question, therefore, about the Chicago trial, should the defendants ultimately prevail, will be whether a prosecutorial abuse of discretion occurred, whether the defendants suffered a special injustice, or simply one that inheres in the system as an unsolved problem, and that we tolerate for lack of preferable alternatives.
The defendants were indicted under a federal anti-riot act, passed in 1968, which makes it a crime to cross a state line with intent to incite, promote, encourage, participate in (or aid anyone in inciting or participating in) a riot, and in the course of the travel or thereafter commit any of these acts, i.e., incite, promote, encourage, aid, etc. The indictment accused the defendants of conspiring to violate this statute, and it also accused each of them of violating it individually.
The evidence of conspiracy, as we now know, was quite flimsy, and the jury returned a verdict of not guilty on this count. (The government has also dismissed the conspiracy count, as well as other charges aside from the contempt conviction, against Bobby Seale, whose case was severed from the main one by Judge Hoffman after some terrible scenes in court.) Much criticism has long been directed—long before there were any Chicago defendants—at various uses of the charge of conspiracy. And one may easily conclude that the bringing of this charge constituted a malfunction of the legal system, perhaps an abuse of prosecutorial discretion. But it remains to be asked whether the case against the defendants was otherwise a plausible one. If so, the defendants would have been properly tried anyway, even if not necessarily together. The question is not whether it was wise to bring the case. That is a political question; if you will, a question of legal statesmanship. Judgments may differ about this question, but nobody (and that includes the defendants) is legally owed one or the other answer to it. The legal plausibility of the charges brought against each of the defendants is another matter. To assess it one must inquire into the applicability of the anti-riot act to the evidence the prosecution had before it, and the constitutionality of the act as so applied. But there is little sense trying to foresee now how persuasive one would find an appellate decision that the verdicts against the defendants either can or cannot stand, that they either do or do not conform to the statute and the Constitution. What can now usefully be attempted is merely to determine whether the prosecution and the jury’s verdict, even though in the end they might not be sustained, were legally plausible, rather than manufactured out of whole cloth and based on nothing but prejudice. The issue at this stage, in other words, is whether the defendants were irremediably victimized by a prosecution. On other issues, they still have their remedy.
Inciting to a riot, promoting it, participating in it, and aiding others to do so are activities that the states, which under our system exercise the basic criminal jurisdiction, are perfectly able and willing to deal with. On the general principle, therefore, which is supported by a variety of considerations, that state administration of criminal justice is preferred where it can be effective, the federal anti-riot act is an unwise law. But it takes its place in the statute books next to a number of unwise criminal laws quite similar to it, not least of all the Mann Act of 1910, on which it was largely modeled, and which punishes the transportation of women across state lines “with the intent and purpose . . . to engage in . . . immoral practice.” If the anti-riot act is an unconstitutional extension of federal power, the reason, in view of cases affirming the constitutionality of the Mann Act and like legislation, is not that the anti-riot act proscribes crossing a state line with the intent to do something upon arrival, but that the thing to be done upon arrival is protected by the First Amendment, since it includes an element of speech.10
There is another argument to which the statute may be vulnerable. Some of the words it uses—“promote,” “encourage”—are quite broad and inclusive, and may be held vague by a court unsympathetic to federal intervention in the administration of the basic criminal law, and sensitive to what is at the very least the nearness of the statute to the area protected by the First Amendment. Holding such words vague, however, a court might interpret the statute to apply more narrowly than it would if these words were given their natural meaning, or it might invalidate it as a whole. Both approaches are open. The first would not necessarily free these defendants. And it is impossible in any event to predict which of these approaches a court might adopt, if either.
Coming, then, to the First Amendment issue, the law of the Constitution generally stated is that discussion of violence or any other illegal act, abstract advocacy of it, even counseling people to commit it—all are protected. But violence itself, rioting, destruction of property, and the like, no matter how political the motives from which they proceed or how political the ends they seek, are not protected. Nor is incitement—speech which has the quality of whipping people up to commit violent or other unlawful acts, and is intended to do so. That has been the law, and remains explicitly the law under a 1969 case, Brandenburg v. Ohio, which Epstein takes great pains to misread. The question then becomes whether what the defendants—the five who were convicted—said and did in Chicago amounted to intentional incitement, and whether the attitudes they manifested before coming to Chicago, combined with their actions and speeches there, support a finding that before coming to Chicago they had formed the intent to say and do what they said and did once they got there.
The demonstrators asked for but were denied a permit by the City of Chicago. Perhaps this denial was unconstitutional, and the presence of demonstrators in the city’s parks and on its streets was lawful. Yet the unconstitutionality of the denial of the permit should not be too lightly assumed. If the city had reason to believe that unlawful acts were planned, it had the authority to deny a permit. And some of the demonstrators, namely the Yippies headed by Abbie Hoffman and Jerry Rubin, cheerfully called for such amusements as barricade-jumping and making love in the parks. Not to speak of drug use. Abbie Hoffman later looked upon it all as one big joke. He was just shocking, scaring, and confusing the Chicago officials, all in good clean fun. But these were the officials he was asking for a permit. And he admitted that in asking for the permit, he did nothing to quiet such anxieties as his high spirits may have caused to the straight, up-tight, and otherwise pitiable, scarcely human, beings responsible for the safety and good order of the unworthy people and streets of Chicago. Quite the contrary. Well, good clean fun is one thing. The constitutional duty to grant a permit for a peaceable and lawful demonstration, and the constitutional authority to deny a permit for a demonstration that looks to be disorderly and unlawful, are quite another thing.
Nonetheless, assuming that the demonstrators were there in the exercise of their constitutional rights, and that the Chicago police from the first harassed them, and then assaulted them illegally and criminally—assuming all that, the defendants may still have intended to come to Chicago to incite to a riot, and may still have committed acts of incitement. They may, as Anthony Lukas rather thinks, have been of two minds on the desirability of a riot, and they may have hoped that the violence they provoked would be mainly that of the police, visible on the TV screens to the defendants’ political advantage. Or they, or some of them, may have been more nearly of a single mind. At any rate, in Chicago they made speeches, and if government witnesses are to be believed, said things in smaller meetings, that were blatant incitements to violence. From the constitutional point of view it is hard to see why it should make any difference that the violence that followed was chiefly that of the police. It is hard to see why it should have mattered if no violence had followed. What may constitutionally be punished is incitement to violence. In conditions where no violence is remotely likely, it may be impossible to view a speech as an incitement. But if a speech is an incitement, why should it be necessary that it be a successful one? The point of punishing incitement is to prevent violence, not to wait for it and then have two offenses available for prosecution rather than just one. Finally, it wouldn’t matter that there had previously been police violence, unless it could be shown that the defendants arrived with no intention to riot, and formed their purpose to do so only after the police had rioted against them. Otherwise, if the police act unlawfully, even indeed criminally, one night, that should not extend constitutional protection to someone who wishes to incite to a riot the following night.
The evening of August 27 in Lincoln Park, Bobby Seale, the jury was told in Chicago, said something like this to a crowd:
The time for singing “We Shall Overcome” is past. Now is the time to act, to go buy a 357 magnum, a carbine, and an automatic and kill the pigs. We’ve got to break up into small groups and create guerrilla warfare everywhere. We can no longer be arrested in large groups or be killed in large groups. We’ve got to break into small groups and surround the pigs.
Most of Seale’s speech was about violence. Violence, he purported to be saying, was to be used in self-defense. But he posited the aggressive brutality of law, of officers of law, and of the whole society. Self-defense was called for because the society was murderous. Seale said:
So is the white racist wall that we are talking about real or not? You’re damned right it’s real. Because we are chained to this wall. . . . Make sure, if you want to coalesce, work, functionally organize, that you pick up a crowbar. Pick up a piece. Pick up a gun. And pull that spike out of the wall. Because if you pull it out and you shoot well, all I’m gonna do is pat you on the back and say, “Keep shooting.”
This to a crowd which had already been through one night of disturbances. Break up into small groups, Seale went on. “So we can dissemble those pigs who occupy our community like foreign troops.”
By small groups dissembling the pigs, Seale said later, he meant small groups of people selling papers and circulating petitions. And as for picking up a gun, he was referring merely to the constitutional right of the people to carry arms. But it is an understatement to say that such an explanation might have reminded the jury of the cynical euphemisms of a Southern sheriff explaining why no Negroes vote in his county, or how a prisoner happened to have acquired a lot of black and blue marks by stumbling against the furniture. It is not beneath Epstein to put forth such explanations with a straight face, but that does not make them compelling.
Seale’s speech may have been the high-water mark of incitement, and one has the impression that the case against Dellinger was weak. Moreover, so far as the defendants’ intentions before coming to Chicago are concerned, the judge excluded some evidence, perhaps wrongly, that may throw a different light. But if government witnesses are to be believed, Hayden, Davis, Abbie Hoffman, and Rubin said enough about smashing windows, breaking up, tying up, and violating the city, letting blood flow, and killing pigs to make out a prima-facie case of incitement against them as well. It bears repeating that one may believe that there was a police riot in Chicago in 1968, and think it an outrage that no policeman should have been brought to book for it. Yet there is no legal absolution in this for the defendants, if they also rioted or incited to riot and had intended to do so. There may be political absolution in it, but not legal.
Whatever an appellate court may decide about the sufficiency of the evidence to support a conviction under the anti-riot act and the constitutionality of that act as applied to the evidence, the prosecution of these defendants—with the possible exception of Dellinger—was itself no violation of legal norms. It was a political move, no doubt, but not one without the law. The case was plausible.
Additional legal issues abound, of course, but as to these, the defendants have an effective remedy on appeal. If there is going to be injustice, the legal order has not committed it as yet. An issue that may alone be decisive is whether Judge Hoffman or federal marshals communicated with the jury in the absence of defendants and their counsel. The court of appeals in Chicago has asked the judge to hold a special hearing on this issue. Among other legal questions, one or two are mountainous molehills. A few are quite serious.
The indictment was returned by a grand jury that Judge William Campbell, chief judge, at the time, of the United States District Court in Chicago, specially charged to look into the events of August 1968. Epstein makes an enormous amount of this, but despite all the dust he kicks up, it is a molehill. What there is to be said in the end is that such a special charge to a grand jury is unusual these days, but not illegal, nor terribly significant. Grand juries generally do what the prosecutor suggests they do, and Judge Campbell and Foran, the U.S. Attorney in Chicago, were certainly not pulling in different directions. So Judge Campbell cannot have made much difference. There is evidence that Ramsey Clark, the outgoing U.S. Attorney General, was not eager for an indictment. Had he remained in office, he could have prevented one by the simple expedient of instructing Foran not to sign it. He could also have instructed Foran not to seek an indictment, regardless of what Judge Campbell had to say. He issued no such instructions. There were political pressures at work, perhaps, but strong-minded Attorneys General are there to resist them if they feel they must. Clark’s successor, who gladly let this indictment go forward, not long ago, in a different sort of case, stopped an indictment against the wishes of the local U.S. Attorney, who appeared to be as much supported by the local federal district judge as Foran was by Judge Campbell. Clark’s predecessor also had occasion once to do the same thing.
In the course of preliminaries to the trial, the government admitted that it had listened in over a period of time on telephone conversations of five of the defendants. The fruit of such wiretaps could not as of then be used directly or indirectly by the prosecution, and the transcripts had to be turned over to the defense. This was done, except that transcripts of some conversations with foreign embassies were withheld. Epstein makes much of a decision announced by the Supreme Court just as the question of the taps was emerging in Chicago, apparently holding that the transcripts of the embassy taps would have to be handed over. But he fudges a clarification soon issued by the Supreme Court indicating that the question whether transcripts of foreign embassy taps must be handed over had not been decided, and remained open. This issue may yet assume importance in appellate consideration of the case, but Judge Hoffman and the government both disposed of it as they were legally free to do in the absence of a contrary direction from the Supreme Court.
During the trial itself, errors were undoubtedly committed, and it is possible that some of them vitiated the trial. The judge was confronted with defendants, and in Kunstler, it is fair to say, with at least one defense lawyer, who were more interested in the verdict of the streets and of the press than in the verdict of the jury. That this is a despicable and destructive attitude is sufficiently demonstrated by asking whether anyone would like to see a Deep South sheriff accused of depriving people of their civil rights equally tried in the streets and in the media, rather than in a courtroom governed by a federal judge? Yet, though perhaps no judge could have been, it is fairly clear that Judge Hoffman was not temperamentally suited to the trials of this trial. For one thing, he intruded himself—Julius Hoffman, not the judge—often and imprudently. He was engaged, embattled.
Right at the start, Judge Hoffman exercised his discretion unwisely—and with dreadful consequences. He might have granted a postponement until Bobby Seale’s preferred lawyer could come and represent him. Of course, defendants cannot be given a right to hold up trials indefinitely so they can get just the lawyer they want. But Seale’s lawyer was undergoing an operation. A postponement of a few weeks could have been granted. Later, Seale’s case could have been severed after he provoked the very first disturbances, all on the subject of wanting his preferred lawyer, or to represent himself. Then he would not have been gagged and bound, which is an appalling thing to do, however legal. Indeed the gagging and binding were in any event not necessary. Seale could have been excluded from the courtroom.
None of this is to say that Seale’s conduct in court should have been condoned. Nor was the conduct of the other defendants or their lawyers to be condoned. If Judge Hoffman gave the defense lawyers little benefit of the doubt, if he was sharp and wary, part of the reason is that the lawyers early destroyed the confidence that normally prevails between a judge and officers of his court, which is what lawyers are. But the sentences for contempt were assuredly harsh, and the number of individual instances of contempt that the judge meticulously piled up border on the absurd. As handed down after trial, by the judge against whom the contempts had been committed, and by a judge who succeeded in maintaining as little distance as Judge Hoffman maintained, the convictions and sentences may well be held altogether unlawful.
The trial, Professor Harry Kalven, Jr., of the University of Chicago Law School, has written, “was a mess and a loss for the society as a whole.” It was “a reckless squandering of the prestige of the legal order.”11 I think that is substantially true—for the short term. But the losses incurred by the legal order can be recouped on appeal, and even turned into advances. It is quite possible that the trial will result in a better law of contempt, and in clarification of the law of the First Amendment. The loss to the society, the defendants’ political gain, may be less easily recouped. Books such as Epstein’s, let alone Hayden’s, try to compound it, and may in some measure succeed. And yet perhaps they do not. This is a free society, and its revolutionaries and their apologists cannot resist the invitation to avail themselves of the society’s freedom of speech. Thus in the end perhaps they will unmask themselves. The faith embodied in the First Amendment is not only that in a free society few will want to make a revolution, but that where the revolutionary idea may be freely ventilated, it will defeat itself.
1 Trial, Holt, Rinehart & Winston, 168 pp., $4.95.
2 The Barnyard Epithet and Other Obscenities, Harper & Row, 107 pp., $4.95.
3 The question arises whether publishers edit books by radicals. Would not Holt, Rinehart & Winston have queried a statement such as this in anyone else’s manuscript, asked that it be justified, and obtained at the very least a clarification or qualification of it?
4 The Great Conspiracy Trial, Random House, 433 pp., $7.95.
5 The spelling is uncertain. Epstein gives it as Dhorn, but Dohrn is more commonly used by others.
6 Hayden addressed the Weathermen before they went on their rampage, praising their militancy, and afterward he and the other Chicago defendants issued a statement which, far from condemning the violence, said of it: “America reaps what she sows.” But Hayden is repelled by the Weathermen’s glorification of Manson, whom he cheerfully names in his book, and calls “a cool, totally alienated killer,” even though no jury had convicted Manson of the Los Angeles (or any other) murders at the time Hayden wrote. It is perhaps fair enough that Presidents of the United States should be forbidden such slips of the tongue, but that hardly anybody, and certainly not his publisher, takes it amiss when a Tom Hayden ignores—yes, ignores—the presumption of innocence in print.
7 Epstein’s conspiratorial assumptions, calculated to engage the credulity of his particular audience, are mild as compared with the rather hairier brand of Hayden’s. (But Hayden peddles no encyclopedic learning, and is, as noted, altogether cleaner in outlook and address.)
Hayden blandly asks us to assume that the murder of Robert Kennedy underscored “the fact that violence was in store for anyone—even those safely within the system—who wanted at least a modification of American policies.” Hayden also puts forth for serious consideration Eldridge Cleaver’s argument, made in an introduction to Jerry Rubin’s book, Do It, that what happened in Chicago in August 1968 was “that a right-wing conspiracy to elect Nixon set up the confrontation to discredit the Democrats and stampede a frightened public toward more conservative electoral choices.” He similarly presents Dick Gregory’s “view,” which Gregory offered as a defense witness at the Chicago trial, that “the CIA was trying to ‘overthrow the country,’ was implicated in the deaths of Dr. King and both Kennedys, and was planning the assassination of black leaders, including himself, in Chicago as a pretext for using the pre-positioned U.S. troops against the ghetto.” Hayden himself perceives some holes in what he is pleased to call Cleaver’s “analysis,” and finds it “not necessary” to accept the entirety of Gregory’s “view.” His own, if you please, analysis is this: “Certainly Dr. King and perhaps both Kennedys were killed by right-wing elements with official connections. A real investigation into the killings would yield explosive results. But regardless of who those specific assassins turn out to be, it is the general attitude of the American Right that it is necessary to use violence and repression to destroy not only hard-core radicalism but the liberalism that fosters it as well. The assassination of popular leaders is only one tactic among many for achieving this result.”
8 Epstein himself does not call people pigs, and some of his expressions of contempt for the white middle class seem to amount to no more than social snobbery—cruel and coarse, to be sure, as only a self-righteous humanitarian, secure in the knowledge that he loves his fellow man, would permit himself to be. There are comments on glossy and peroxided pompadours, for example, on Foran’s wife’s “golden pyramid” of hair, and on Schultz’s wife’s “concave features.” But When Epstein gets to Judge Julius Hoffman, he reaches a level of viciousness beyond mere social snobbery. The judge’s appearance, speech, and manner are relentlessly ridiculed (his size—quite small—evidently gave particular offense), as is everything else about him, not excluding the fact that—we are told—he married a well-to-do divorcee with two children, whom he refers to as his, though he has none of his own.
9 As soon as anything needs to be accomplished that is more complicated than preparing a dish of spaghetti, distributing marijuana, or perhaps letting some random bombings occur, it becomes apparent readily enough that division of labor is essential, that indeed labor, which does not always coincide with self-fulfillment, is essential. The defense in Chicago, Anthony Lukas reports, could call on plenty of volunteers for the staff work it naturally needed. But these volunteers soon discovered that what was wanted of them was sheer unadorned labor: typing, mimeographing, running errands. The defendants themselves had other things to do, the important, the fulfilling things. And they couldn’t possibly be bothered to decide what to do each day by consulting the entire staff and taking a vote. Was she working for Rennie Davis, asked a young lady dissatisfied with the defendants’ treatment of her and the rest of the staff? Certainly not. She was working for the Movement, and if she thought that what Davis was doing was wrong, “Why is it that he should have someone there to tell me to shut my mouth and type my letters?” Tom Hayden himself tells the same story, with much bafflement and regret. “Like any other business,” he writes, “the Conspiracy organization pigeon-holed people into roles.” The leaders never consulted staff members about basic trial strategy, “and their [the staff members’] growth as whole people was hardly allowed in the situation.” Everyone was under pressure. “None of us had ever been required to appear on time every morning for six months anywhere. . . . The trial necessitated discipline. . . . This crowded out time for democratic decision-making or the nonexploitative relationships we are supposed to be building. . . .”
10 Epstein picks up a notion that the Constitution requires the intent which is formed on one side of a state line and the conduct engaged in on the other side to be very nearly contemporaneous. But barring some extraordinary set of circumstances, not apparently present in the Chicago case, the example of the Mann Act decisions seems to be against him. Anthony Lukas, for his part, wonders how in the world the law judges a man’s intent, which may indeed not be easy, but which the law does in numerous instances. Thus offenses not otherwise subject to federal jurisdiction become federal crimes when they are committed with the intent to deprive someone of his civil rights. The law judges intent by imputing it to an actor or speaker; by asking what a reasonable man would have had in his mind when he did or said a certain thing.
11 Harry Kalven, Jr., “Chicago Howler,” the New Republic, March 7, 1970, pp. 21-23.