Those of us older than 30, I would guess, will recognize the name Atticus Finch. He is a lawyer in Harper Lee’s novel To Kill a Mockingbird. A man of conscience, he agrees to represent a black man, Tom Robinson, against charges of rape against a white woman.
It took courage for him to do so in a deeply Southern town. And it is that image, I believe, that is for many of us at the heart of seeing the Law as a noble profession.
The novel was printed in 1960 and there was a later film adaptation, all while the Civil Rights movement was reaching its zenith. The novel and film burned into our souls the good work that could be done by those willing to fight the good fight and use the Law to do so.
The ACLU (American Civil Liberties Union) traded in such conviction, often taking on unpopular causes in the name of constitutional civil liberties that were being threatened.
An instructive example of the ACLU’s stance in an earlier time occurred in 1977 when the leader of the National Socialist Party of America – American Nazis – announced they would be organizing a march in Chicago. What was outrageous was that the march was planned for the streets of Skokie, IL, a suburb of Chicago with a very large population of Holocaust survivors.
Everyone saw it for the provocation that it was, and many sought to have the march stopped in its tracks. The city tried to apply various city ordinances to stop it. It imposed a huge (at the time) indemnity of $350,000 against any damages, hoping that the Neo-Nazis wouldn’t have that kind of money.
The city also banned any use of Nazi paraphernalia were a march to occur, including use of the Swastika. They were seen as “fighting words” and a provocation to violence.
The ACLU, though, saw the whole affair as an attack on constitutionally protected First Amendment rights of assembly and of speech. The ACLU position is lucidly explained here.
Fear of violence arose also when Meir Kahane, founder and leader of the Jewish Defense League, went to Skokie and argued for the use of force in defense of Jews against the Neo-Nazis. He exhorted his followers and others gathered during a rally to “kill Nazis now,” and “every Jew a .22.”
Kahane, an apologist for violence, was later assassinated in a New York City hotel in what at the time was seen as an anti-Semitic attack by an Egyptian-born U.S. citizen.
Over the years information unfolded to indicate that the assassination, in actuality, was one of the earliest examples of directed Islamic terrorism in the United States.
Though the march was initially cancelled, the whole saga then wended its way through the courts, ultimately reaching the Supreme Court, which ordered the case returned to the state of Illinois with the admonition to assure that there be no limitations of free speech should a march later occur.
The Illinois Supreme Court then weighed in. Endorsing the arguments of the ACLU, the court ordered that the march is constitutionally protected and that the Nazis may wear and display Nazi paraphernalia. The courts had already accepted burned American flags and the Confederate “Stars and Bars” as “symbolic political speech” that is protected by the First Amendment, and the same is true, the court argued, of the Swastika.
The march was then scheduled for June 25, 1978. Turns out it wasn’t much of a march. About 20 Neo-Nazis showed up, but they were drowned out by the far larger number of anti-Nazi demonstrators.
The precedent of protecting constitutional rights was affirmed, though, and that was the great takeaway from the episode. And as anguished as many of us were at the time – who the hell wants to support a bunch of Neo-Nazis, after all – we relished the work of lawyers at the ACLU in protecting all of our rights.
It is just such a principled stand that inspired John Adams to defend British soldiers against the angry mob after the Boston Massacre, a precursor to the Revolutionary War.
On March 5, 1770, British soldiers gathered to protect officials appointed by the Crown to enforce the orders of the British Parliament on the colony. They were being accosted by a mocking Boston crowd at the Boston Custom House.
The crowd then turned on the soldiers. In addition to the derision, those in the crowd began throwing ice-laden snowballs and glass. One of the troops overreacted when hit and fired his weapon, which led to other soldiers firing into the crowd.
When it was over, five Bostonians lay mortally wounded. Eight of the soldiers, including the commanding officer at the scene, were charged with murder. The passions of the colonists were such that a trial hardly seemed necessary. Just hang the bastards.
It was then that a 34-year-old attorney, John Adams, made a fateful decision. A passionate patriot who would help lead a revolution against Britain a few years later, he risked his reputation and his family’s well-being by choosing to defend the British soldiers in court. Why?
It is because he loved the Law and believed everyone deserves a proper defense in a Court of Law.
Adams, and indeed the entire trial, had to walk a fine line. It had to be a fair trial such that it would not lead to British retaliation, and it also had to not offend patriotic colonists who had no love for the British.
He was able to defuse the emotions of the time with his defense, which argued that, given the circumstances, the soldiers were in fear for their lives and acted in self-defense.
The trial was a milestone in several respects. While still operating within a British notion of criminal justice, the colonists wanted to tweak the system to institute their own jurisprudence. For example, this trial was the first time the notion of “reasonable doubt” was used as a judicial standard. It was also the first time a jury was sequestered.
In addition, one witness was a doctor on the scene who testified that, while treating a victim of the massacre who later died, the victim said he forgave whoever shot him because he knows they were acting in self-defense. Normally, that would be considered hearsay and inadmissible. But because it was a “dying declaration” it was admitted as testimony. It was one of the first times a dying declaration was adjudged an exception to the hearsay rule.
In the end, six of the eight were found innocent while the other two were found guilty of manslaughter. Normally, a death penalty would then ensue, but the two found guilty invoked an ancient rule, the “benefit of clergy.” Instead of death, the penalty was branding of their thumbs in open court.
Clarence Darrow is another great example of a lawyer who fights for his convictions rather than for wealth, prestige or popularity. His career as a lawyer is best summed up by several books on him that all share the same title: Attorney for the Damned.
On May 21, 1924, Nathan Leopold and Richard Loeb, two brilliant young students in Chicago, murdered a 14-year-old boy just for the thrill of it. In their intellectual arrogance and, in part through their reading of Nietzsche’s notion of the “Ubermensch” (superman), they wanted to prove they were superior by getting away with the perfect murder.
They were soon caught, and soon after confessed. Described at the time as the “crime of the century,” the public wanted its “pound of flesh” on this one. Darrow entered the scene because of his adamant opposition to the death penalty.
Conviction was never in doubt; it was the sentence that Darrow wanted to influence.
Throughout the trial and in a 12-hour summation to the judge he laid out environmental, psychological, genetic and economic rationales for a mitigation of a death sentence. Not to mention that they were quite young. Leopold was 19 while Loeb was 18. In the end the boys did avoid a death sentence, though Loeb was murdered soon after entering prison. Leopold eventually was released.
The other well-known trial of Darrow’s is the 1925 so-called “Monkey Trial” of a biology teacher in Dayton, TN, who, against a recent law passed in the state legislature, taught Darwin’s Theory of Evolution. The film Inherit the Wind is based on that trial, though the film gets many of the facts of the event wrong in its Hollywoodizing of the event.
In actuality, it was all a publicity stunt for the town that quickly spun out of their control.
Before they knew it, former U.S. Secretary of State William Jennings Bryan, known for his “Cross of Gold” speech and as a three-time Democrat-nominated candidate for the Presidency, publicly joined the prosecution in order to defend the Bible message against evolution.
For his part, Darrow had been chasing Bryan around the Chautauqua circuit for years trying to get him to engage in a public debate on religion. Famous for his agnosticism, Darrow saw an opportunity when Bryan joined the prosecution. At the behest of the Baltimore Sun he joined the defense.
What resulted was one of the most dramatic episodes in any American courtroom as Darrow called Bryan as an expert witness on the Bible, and then proceeded with that debate he’d been wanting for years.
Make no mistake, though, Darrow was operating in hostile territory. The people of Dayton, with few exceptions, loathed Darrow and all that they believed he stood for.
Among other things, they resented that he got those two murderers off in Chicago. So it was an act of bravery for Darrow to confront the mob each day entering the courtroom.
Well, when it comes to John Adams, Clarence Darrow and the ACLU of an earlier time – all that was then. What of now?
Derek Chauvin, a policeman convicted of murdering George Floyd by asphyxiation during an arrest in Minneapolis in 2020, is appealing his conviction. According to Scott Johnson of the Powerline Blog, there are good arguments for overturning at least portions of the conviction. But there is a problem. Chauvin has no lawyer. Chauvin cannot get a lawyer.
In his original trial, his lawyer at the time and witnesses for the defense were harassed and threatened. Message sent. Now, no lawyer will step up to give Chauvin a proper day in court on appeal.
Where is our Clarence Darrow? Where is our John Adams?
College students today who run afoul the interpreted requirements of the Title IX “Dear Colleague” letter can find themselves being confronted with allegations of sexual abuse and harassment, and then find themselves facing “star chambers” with the power to change their lives forever.
Facing charges, students find themselves unable to confront their accusers, cannot have legal counsel, are not allowed to bring in witnesses or to review testimony against them, and a variety of other basic Fifth and Fourteenth Amendment “due process” and “equal protection” rights.
Where is the ACLU? The organization, led by Ira Glasser in its more altruistic days fighting the good fight for people’s First Amendment rights, has in recent years become more an adjunct of the Progressive movement within the Democrat Party.
Fortunately, another organization, FIRE (Foundation for Individual Rights in Education) has stepped into the breach in education. But what about society-at-large? Who will defend our basic constitutional rights if the ACLU no longer will?
Political ideology and the rage mob, it would seem, has had a chilling effect across the board.
By Ron Nutter
Ron Nutter is a retired college professor of Philosophy and Religion living in a cabin on a mountain in Western North Carolina with his retired physician wife, and he still reads voraciously.