THE MOOD OF AMERICA
THE MOOD OF AMERICA Notes on Bill of Rights Day and A Strange Dish Being Prepared for a California Jury The Powells and Wartime Sedition' by LAURENT B. FRANTZ ASTRANGE task will confront a...
...They will likewise be asked to sit in judgment on the acts of their own country and of the United Nations...
...Last year's effort was made by the Freedom Agenda Committee of the Carrie Chapman Catt Memorial Fund, an independent educational and research organization created by the League of Women voters...
...They will be obliged to play the role of future historians by arriving at an authoritative and final interpretation of this material...
...The 1917 act, which the late Professor Zechariah Chafee once called "the deadliest blow ever struck at a free press in the United States," is the one under which almost 2,000 persons, chiefly pacifists and socialists, were prosecuted for opposing the first World War...
...The first set of problems arose over the efforts of the defense to prepare its case...
...China, however, announced that it would not admit him on such a basis...
...Yet the prosecution contends that each of these statements was a violation of the 1917 sedition act, subjecting Powell to a possible penalty of 20 years imprisonment on each of 13 counts...
...It was under this act that Eugene V. Debs was sent to prison for making an anti-war speech...
...In the Virginia House of Delegates, Mrs...
...For four years, a campaign has been carried forward to persuade governors in all 48 states to proclaim December 15, the anniversary of the Bill of Rights, as Bill of Rights Day...
...Yet the Justice and State Departments are parts of a single government and it is hardly consistent with due process of law for that government to prosecute with one arm while, with the other, it prevents the defendant's counsel from visiting "the scene of the crime" to look for evidence...
...These successive drives to obtain proclamations have in themselves prompted two entirely different kinds of response from liberals...
...Other liberals point to the glaring inconsistencies between principle and performance on the part of some governors...
...But hers was a voice practically alone, for the bills passed with only a handful of legislators daring to dissent...
...Katherine H. Stone of Arlington asserted that freedom of speech, for which Virginians had fought and died, was now to be circumscribed by legislation ostensibly directed against the NAACP...
...The American Civil Liberties Union attempted the task in 1950 and again in 1952...
...Although it was upheld by the courts in these early cases, it has been little used since and its constitutionality has not been reviewed by the Supreme Court for 35 years...
...They wonder how many professional politicians, deep in their hearts, classify December 15 in the same category as the week of October 16 to 22—"Pass the Laugh Week...
...At first it might seem that the very nature of the occasion, Bill of Rights Day, plus the sponsorship of the campaign—for three years by the American Civil Liberties Union and one year by the Freedom Agenda Committee, whose work was underwritten almost completely by the Fund for the Republic—would primarily attract the support of governors who have made the defense of civil liberties and equal rights a major part of their political stock in trade...
...However, this exceedingly rare document may turn out to be the beginning rather than the end of his problems...
...The defense attorneys applied for permission to go to China, which the State Department flatly refused...
...Is a public trial of these charges designed to build up counter-pressure against demands for a revision of Mr...
...Not the Korean War evidently, since the prosecution was not brought until long after the fighting ended...
...These accounts said, among other things, that the United States was engaged in "aggressive acts," that the Chinese and North Koreans were defending their homelands, that the Chiang Kai-shek regime was corrupt, that the United States had used the fighting as an op portunity to test bacteriological weapons, and that the Korean truce talks were being intentionally stalled by U.S...
...There are some rather startling omissions on the roster of states proclaiming Bill of Rights Day...
...Perhaps the greatest problem, however, would arise if and when the case gets to the jury...
...THE MOOD OF AMERICA Notes on Bill of Rights Day and A Strange Dish Being Prepared for a California Jury The Powells and Wartime Sedition' by LAURENT B. FRANTZ ASTRANGE task will confront a federal jury in San Francisco if and when the Powell-Schuman sedition indictment comes to trial...
...Virginia illustrates this paradox of a Southern governor issuing a proclamation and then defying the principle of the Bill of Rights...
...Whatever the answer, it is becoming increasingly evident that questions raised by the Powell indictment and the task confronting the jury add up to one of the most bizarre trials— if it comes off—in American history...
...That state, once the cradle of revolutionary fervor and Jeffersonian liberalism, has traditionally observed Bill of Rights Day...
...Not what the Powells printed about it, since much the same was printed by a number of periodicals in this country whose editors were never prosecuted...
...As a result, defense counsel Al Wirin of Los Angeles has a U.S...
...passport stamped as being valid for travel to China and to North Korea—the first such issued in a number of years...
...Dulles' China policy...
...Since all these difficulties were easily foreseeable, one is obliged to wonder what inspired the government to pry open this Pandora's Box...
...Furthermore, though the government must have known all along that it was getting a bad press in the China Monthly Review, no move was made to prosecute the Powells until nearly three years after they had closed the magazine and returned to this country—and not until after action against them had been publicly demanded by Republican Senator William Jenner of Indiana and other McCarthyites...
...For example, how far may the government prosecute people on the theory that what they said about Korea was untrue and at the same time withhold from the defendants and the jury its own confidential reports on what did take place...
...The Freedom Agenda Committee has since completed its projected educational program, and the ACLU is again sponsoring this year's drive...
...Former Attorney General Brownell was reported to have described the prosecution privately as a "political must...
...They believe that even though various governors may leave much to be desired in their own civil liberties records, their proclamations will have a salutary educational effect in their states and throughout the nation...
...Thomas E. Dewey failed to heed the call to proclaim Bill of Rights Day in New York State in 1950 or 1952, a situation rectified by Governor Harriman in 1956 and 1957...
...Or is it—just the opposite—designed as a sop to the China Lobby because a revision of China policy is contemplated...
...And the Palo Alto Times asks editorially: "What becomes of the free press if all editors are required, under threat of severe penalties, to accept the official version of every action taken, and print nothing except that version...
...Some feel that only good can come from commemorating the Bill of Rights...
...In a statement declaring that the Powell prosecution "presents a serious threat to fundamental liberties, particularly freedom of the press and fair trial," the American Civil Liberties Union of Northern California warns that "if the sedition statute may be applied to the Powell statements, it may, by the same token, be applied to any statement which might have an adverse effect on the morale of the general public in wartime...
...The indictment does not charge that any unlawful action—or, indeed, any action—was advocated...
...The occasion of this unusual undertaking is the indictment of three Americans for "wartime sedition," based solely on their reports and comments on the Korean war and the Korean truce negotiations, published in China while those events were in progress...
...None of these charges originated with the Powells, of course, nor did they purport to be first-hand reports...
...Some Governors Shun Bill of Rights Day by HENRY M. CHRISTMAN ONE HUNDRED and sixty-six years ago it required action by three-fourths of the states to add the Bill of Rights to the Constitution...
...The possible defense evidence was all locked behind the borders of countries to which Americans may not travel...
...This camp holds that some governors proclaim the occasion simply for prestige and political expediency and even, perhaps, with hypocrisy...
...This viewpoint is not unanimous, however...
...Stone warned the Virginia legislature that "advocacy of any opinion except subversion has always been protected by our Constitution and our Courts...
...It does not charge that the Powell statements had any actual effect on military operations...
...In none of these four years have three-fourths of the governors responded affirmatively...
...Both were associate editors on the staff of the Review during the Korean war...
...Its members will be required to master a body of material on Asia and international relations so voluminous that it might well dismay a committee of scholars...
...They soon were joined by a third governor noted for his strong conviction against integration—Governor Price Daniel of Texas...
...If this obstacle is somehow hurdled, others just as embarrassing are in the offing...
...It is hardly consistent with due process of law for the same government to prosecute with one hand and, with the other, prevent the preparation of the defendants' case...
...Governor Griffin's action was followed shortly by a similar move by Governor Orval E. Faubus of Arkansas, fresh from his role in the Little Ro k episode...
...They represented the editors' interpretation and evaluation of the news reaching their desks...
...Financial difficulties forced the younger Powell to convert the magazine to a monthly and finally to close it in 1953...
...After inconclusive tinkering with this problem had delayed the trial for about a year, Federal District Judge Louis E. Goodman finally gave the government 30 days to get itself out of this position or face dismissal of the case...
...Although the Review was devoted primarily to internal developments in China, it also published stories and editorials on what was going on in Korea, as it looked from Communist Shanghai...
...The first set of problems arose over the efforts of the defense to prepare its case...
...Just how does one take evidence in a foreign country while pretending that that country's government does not exist...
...And what circumstances can explain a case like that of the Dakotas, where the successive governors of South Dakota have issued proclamations in all four years, while the governors of North Dakota failed to issue a proclamation on any of these occasions...
...It must come as something of a surprise to many persons, then, when the first governor to endorse the current drive, issue a proclamation, and get a copy back to the ACLU was Governor Marvin Griffin of Georgia...
...Believing that he had no jurisdiction to order the State Department to validate passports, Judge Goodman took the unprecedented step of authorizing defense attorney Al Wirin of Los Angeles to go to China without a passport as an "officer of the court...
...Meanwhile, in all sections of the nation such occasions as Odorless Decoration Week, Butter Cookies Day, National Pickle Week, Take Tea and See Week, and American Fresh Water Pearl Month have been given the dignity of the governor's office and the Great Seal of states whose chief executives cannot be bothered to commemorate the Bill of Rights...
...The Review's circulation in America was negligible, especially in contrast to the enormous volume of contrary material being published here...
...Under ten of the 13 counts, the jury can convict only if it finds that the statement printed was "false," which it can do only after it has first decided what constitutes the official truth about these matters...
...But if adoption had depended upon three-fourths of today's governors commemorating the anniversary of adoption, the Bill of Rights would never have been adopted in the first place...
...The principal defendant is John W. Powell, who inherited the China Weekly Review, an English language Shanghai periodical founded by his father many years previously...
...negotiators...
...Indicted with him are his wife, Sylvia, and Julian Schuman...
...What made it so is an intriguing topic of speculation...
...Since the defense side of the case cannot possibly be presented without evidence and witnesses from Asia, Federal District Judge Louis E. Goodman was placed in a dilemma...
...He will have no subpoena power and he will certainly not have sufficient funds at his command to be able to offer Chinese and North Korean witnesses a round trip to San Francisco with all expenses paid...
...Yet a few months before Governor Thomas B. Stanley proclaimed Bill of Rights Day in that state in 1956, his administration was jamming measures through the legislature which Virginian opponents charged violate not only the United States Bill of Rights but also the historic Virginia Bill of Rights...
...The government has already begun to discover that it is easier to indict an heretical version of recent history than it is to try one...
...They believe that for such governors to proclaim Bill of Rights Day mocks the ideals enshrined in that document...
...How is the jury to decide impartially, when an acquittal would be popularly (even though inaccurately) interpreted as equivalent to finding the United States guilty of aggression and germ warfare, and might well bring the jurors themselves under suspicion in some quarters...
Vol. 22 • January 1958 • No. 1
