You Can’t Do That!: Liberty or Law

And since similar forces in many lands have invariably developed within a certain pattern, I have attempted, after examining the economic, patriotic, financial, and other motives of American reaction, to draw a parallel with the ultimate form, Fascism.

This book deals almost wholly with the present. Civil rights, freedom, liberties, the “precious blessings” which Jefferson believed “no other people on earth enjoy,” have never been enjoyed by all the people of the United States and for almost a century by none of a whole stratum of the population.

During the greater part of the first century of American industrialism the right of labor to voice its grievances, the right to unionize, to meet freely, were looked upon as economic treason. The right to strike for a long time was considered a criminal action — and many employers would like to see it so today.

Throughout labor’s long struggle the right of habeas corpus has been denied hundreds of times, and cruel and unusual punishments have been inflicted, excessive bails have been demanded, and injunctions have been granted within a few weeks after a state law has been passed making injunctions illegal. Frequently the Bill of Rights, as well as the laws of city and state, has been violated by those constituted authorities who are morally unable to realize that they are upholding some Super-​Mammoth Shirt Company rather than the Constitution of the United States. Some judges of course prefer the shirts.

The relationship between hard times and a savage onslaught on civil liberties became evident to a few persons of our generation in the early 1920’s and has been abundantly and tragically proved to many more in the recent winters of our discontent. “In our times, as in times before,” wrote Henry George at another such crisis, “creep on the insidious forces that, producing inequality, destroy liberty. It is not enough that men should be theoretically equal before the law. They must have liberty to avail themselves of the opportunities and means of life; they must stand on equal terms with reference to the bounty of nature. Either this or darkness comes on, and the very forces that progress has evolved turn to powers that work destruction. This is the universal law. This is the lesson of the centuries.” A purely academic or philosophical theory that freedom cannot be secure so long as our living is not secure, has become, many now realize, a vital reality of everyday life. We cannot go on enjoying liberties as luxuries granted us by a prosperous economic situation, much as the poor once “enjoyed” the charity granted them by the rich.

The insidious forces which produce inequality and destroy liberty are the subject of a large part of this volume.

In the great crisis of 1929-1938, these reactionary forces looked upon the unemployed, the dispossessed, the discontented, as so much dry political tinder which they feared might be ignited by a phrase, a slogan, the outstretched hand of a demagogue. Obviously, therefore, the men of wealth and power felt the thing to do was to keep this dangerous human material blanketed and impotent under suppressive laws, gags and regulations and terrorized by the police, the militia, the American Legion, the injunction, by private armies of thugs, gangsters, and by various dirty-​shirted organizations.

But the cleverest (and crudest) among the suppressive means resurrected to intimidate the masses, and check individual thinking, has been the same red scare which had proved so effective in suppressing liberal thought in the depression of the 1920’s.

I have no doubt that there are a few sincere men among the red baiters, nor do I have any doubt that the patriotism of many is the last refuge of scoundrels — a fact which Johnson noted years ago and which Matt Quay, who belonged in the Johnsonian category, admitted when he said that if a political platform is weak, “wrap yourself in the American flag and talk about the Constitution.”

I think the documentary evidence which I have given in the following chapters will reveal not only the economic forces behind the suppressive, superpatriotic, red-​baiting, intolerant and obscurantist organizations and leaders, but the actual dollar and cents price of their patriotism or their scoundrelism.

Since in every instance the reactionary forces have been Machiavellian enough to appropriate the garlands of patriots for themselves…

Throughout 1936 and 1937 while this book was being written, the La Follette Senate Civil Liberties Committee hearings in Washington exposed almost unbelievable conditions in American industry; they produced the documentary proof of the existence of private armies of thugs and spies, many with records as thieves and murderers. They revealed, in fact, a situation very close to that of Italy between 1920 and 1922 when Mussolini, rebuffed in an effort to lead a workers’ army into Rome, sold the Fascist Blackshirts to the manufacturers’ association and spent two years destroying labor unions, their cooperatives and the lives of thousands of their members. Several volumes have already appeared epitomizing this sensational testimony; therefore I am not repeating what is perhaps the most important evidence in American history of the corruption, conspiracies and general villainy of a large section of big business in its unadmitted and undeclared class war upon the working people.

The major portion of the book is devoted to naming, discussing and presenting the evidence against all enemies of our liberties, which naturally enough turn out to be the forces of reaction. In the third section of the book I have tried to show how America is cutting the cloth of its shirt to fit the Fascist pattern of Europe, and finally I have had a few words to say about the stand and actions that those who really wish for the survival of American liberty must take. Whatever doubts I may have had on this subject were burned away in the shellfire of Madrid during the winter of 1936-1937.

George Seldes
Woodstock, Vermont, 1937
New York City 1937-1938.

You can’t swear in Elkton, Maryland. A city ordinance of June 1, 1936, made the use of improper speech “in or about business premises” punishable by fine or imprisonment and held the proprietors of buildings responsible. Likewise in Burnsville, West Virginia, Mayor C. E. Whytsell decreed a fine for all who could not curb their speech.

The mayor of Keosauqua, Iowa, on the 24th of the same month, issued a ukase to his one thousand citizens that they must not smoke in bed.

Despite an almost embarrassing proximity to the night-​club supersophisticated city of New York, the puritan aldermen of Yonkers have banned the wearing of shorts by the fair and sometimes fat sex. The reason was moral, not a gesture of transcendental aesthetics.

In Berea, Ohio, an ancient but still unrepealed statute makes it illegal for you to take your dog or cat out after dark without a red light on the animal’s tail. Whiskers, “complete or partial,” are illegal in Los Angeles but beards are standard equipment required by the laws of Brainerd, Minnesota, and Centralia, Washington, ac- cording to the scholarly researches of Dick Hyman whose mad compilation is called It’s the Law. An ancient statute makes it illegal to play the fiddle in Boston or to own a dog more than ten inches high. “It is against the law in the State of Virginia to have a bathtub inside a house; same shall be kept in the yard.”

Small town nonsense? Judicial hangovers of Puritan days? Forgotten regulations once necessary to a frontier people? Perhaps.

But in September, 1931 , a California judge named Jones barred from American citizenship one Jacob Hullen, because in answer to His Honor’s questions Hullen replied that he believed wholeheartedly in municipal or government ownership of light and power plants and other public utilities, that he favored government operation of such necessities for the benefit of the people of America instead of the corporations of the United States.

In New Orleans, Federal Judge Wayne G. Borah denied citizenship to four persons otherwise qualified to take the oath, because they were on relief, therefore “unable financially to contribute to the support of the government.” “Admission to citizenship under these circumstances,” concluded His Honor, “in my judgment would do violence to the immigration laws of the United States.” This decision was made at about the same time as an address by Former Supreme Court Justice Daniel F. Cohalan of New York, who, while denouncing President Roosevelt under the auspices of the Defenders of the Constitution, advocated “the immediate passage of laws to insure that no votes can be cast in the coming (1936) election by any elector who has received any funds from the government within two years preceding the election.” In other words the very poor, the millions on relief, would be disfranchised if a man who had sat on the state’s supreme court bench had his way.

In some of these episodes, therefore, nothing but stupidity and ancient nonsense is at stake; but in others a new pattern begins to emerge: it is no longer nonsense and small-​town arrogance, it is self- evident violation of the civil rights of citizens by the forces elected or appointed to safeguard the Constitution, protect the minority, dispense “equal justice under the law.” We come now to the forces which represent vested interests rather than the Bill of Rights.

The first ten amendments to the Constitution were not added without a fight, and the struggle for the rest has cost a tremendous amount of blood and ink. The legislative bodies add more laws, the courts pass on them, the police enforce them, and most citizens of this country generally believe that all is for the best in the best of all possible worlds. Such citizens have never belonged to a minority group. They have never joined a non-​popular movement. They have not even tried to proclaim the Republican Party in the Deep South or the gospel of F.D.R. in Vermont. They know nothing of political prisoners, they have never been militant in labor, they have even forgotten the bloodshed between Protestant and Catholic of a generation ago, they never were pacifists in time of war hysteria.

The law of the land makes no distinctions of party, race, political affiliation, sex, industrial philosophy, religious activity. But nevertheless the corner policeman and Mrs. Grundy say “you can’t do that.” The law says picketing is legal, and the strike the useful weapon of labor, but the gunmen of big business shoot down scores of workingmen each year and the verdict is “not guilty” or “justifiable homicide.” The pressure groups undermine the integrity of the press, the lobbyists pass laws in Washington, and patriotic organizations wave the stars and stripes over kidnapping and lynching and mass violence. A mayor says He is the law, a governor speaks of the value of lynching, senators openly declare for Fascism, and when a congressional committee finds the evidence of a big plot to overthrow the government, no action is taken because the guilty are not the expected “reds,” but decent gentlemen from Wall Street.

You can’t print many of the great classics. You can’t see some of the greatest movies ever made. You can’t speak in thousands of cities on legitimate topics if your point of view is not that of the mayor or the policeman or the American Legion. At times you can’t travel into certain states which want only tourists who have money to spend. And you cannot investigate conditions in the Imperial Valley or organize workmen in Alabama towns, or go about freely in Harlan County during periods of terrorism which may last for weeks or years.

The flag is still flying, the Constitution still exists, the law is on your side, and yet you can’t do that.…

There are certain forces which aim to make a desert of our Bill of Rights — in the name of patriotism.

…[There are] thousands of human-​interest stories barely noted in the human-​interest-​chasing press, which illustrate the present continuation of the struggle for common liberties which broke out in the first days of our national history when the reactionaries fought the Bill of Rights. They also illustrate in human terms the findings of the La Follette Committee and the annual reports of the American Civil Liberties Union, the Federal Churches of Christ in America, the Methodist Federation for Social Service, the similar committee of the New York Synod of the Presbyterian Church, the newly formed Lawyers’ Guild, the Newspaper Guild, the National Committee for the Relief of Political Prisoners and other organizations whose acts, not words, prove them the real inheritors of the Jeffersonian tradition.

We must distinguish between the true and false friends of liberty. Every citizen of the United States officially is for the Constitution and the Bill of Rights; even the Nazi-​Germans and Fascist-​Italians shout that way, although their Fuehrer and Duce are frank enough to express publicly their disgust with democracy and liberty — with human freedom as we understand it. The Black Legion no less than the American Legion swore to uphold the Constitutional amendments.

In the 1936 political campaign even the Republican Party grew almost hysterical about the situation. “America is in peril,” read its platform. “The welfare of American men and women and the future of our youth are at stake. We dedicate ourselves to the preservation of their political liberty…today…threatened by government itself.”

The Democrats issued a warning: Reaching out “for the control of government itself,” making “liberty no longer real,” life “no longer free,” is a small minority, “privileged princes of these new economic dynasties, thirsting for power,” “this new industrial dictatorship,” seeking in vain “to hide behind the flag and the Constitution,” So said the President of the country. He too was intent upon saving liberty.

The Chamber of Commerce came out for liberty.

But when a group of attorneys, writers, educators and others asked the five political parties “to make at least one public pronouncement on the issues which constitute the heart of the struggle to maintain democratic liberties in the United States,” to refrain from meaningless generalities, but to include civil liberties planks in their platforms, they were rewarded by the major parties with silence and inaction.

How important and useful such action would have been was illustrated in the preliminary report of the La Follette Committee which officially proved that big business in America was frequently lawless, that the rights and liberties of the biggest stratum of American society, labor, were frequently violated, that big business violated the Constitution and used the flag for financial purposes, and that numerous paragraphs of the Bill of Rights, especially those guaranteeing free speech and free assembly, were violated everywhere. Bloodshed, terrorism, frequently death and always intimidation, marked the war on labor waged by money, power, big business. Liberty was a joke to the captains of industry and their armies of thugs; and existing laws were simply handicaps which could always be overcome with a little more money, a little more violence.

“Espionage,” said the report “has become the habit of American management. Until it is stamped out the rights of labor to organize, freedom of speech, freedom of assembly will be meaningless phrases.” And furthermore,

“It is being developed that employer and (spy) agency have two separate interests in violence. The agency’s interest in violence, and by that same token that of the strikebreaker’s, is that it will prolong and embitter the fight so that a stronger guard will be called out and more money expended through the agency. The employer’s interest in violence is that it shall, by being attributed to the workers, bring discredit to them, thus alienating public sympathy for their cause…” Violence is provoked in order to obtain an injunction against the strikers…

(The press says labor violates the law. The Senate committee proves that business violates the law. The press says that labor starts violence. The committee proves that business starts violence. The press, blaming law violation, violence, disregard for human rights and the public welfare, on the working men instead of those really guilty, thereby creates that public opinion which breaks strikes, keeps labor poor and terrorized, continues the miserable system of unrest and hatred. Whereupon the press congratulates “public opinion” on its victory.)

The findings of the La Follette Committee, a great shock to organized and unorganized labor, were not news to hundreds of the greatest corporations of America which are the employers of the armies of violence. The reports, however, officially confirmed the annual statements of the various lay and church organizations previously mentioned, and also served to prove that the numerous so-​called patriotic and business groups which today as in the past shout “Red” at any democratic movement on the side of labor, are themselves the vicious law-​breaking element in our society.

The greater part of the present and recent reports of the American Civil Liberties Union (leading and most reviled of the non-​partisan organizations devoting themselves to eternal vigilance) is devoted to the subject of big business versus labor, but the attacks on free speech, the theater, the moving pictures, the right of asylum, books, painting, academic freedom, are also noted. From pre-​revolutionary times to now the moral crusade against the liberty of others has waxed and waned but never ended. However, this volume concerns itself chiefly with the economic onslaught.

Obvious from all investigations and reports is the definite relationship between hard times and the attack on liberty. In 1929 and 1930 there were more cases of violation of civil rights than at any time since the (illegal) Espionage Act which throttled all of them during our World War. As times grew worse during the Hoover administration, attacks on the liberties of workingmen, strikers, Negroes, and all labeled radicals increased with the same intensity of suffering and injustice as the Great Depression. With the advent of Roosevelt H there was a temporary let-​up in violence and repression and a tidal wave of optimism engulfed labor. The New Deal legislation was grasped by wage earners as the first bill of labor rights in the history of our country. Collective bargaining, higher wages, economic security seemed in sight, the world seemed safe for economic democracy.

Between the summer of 1934 and the midsummer of 1935, a great change came over the struggle for the maintenance of civil liberties. It was largely the old conflict between capital and labor, but with capital taking the offensive after a full year of suspiciously humanitarian dealings.

In minor engagements the national administration seemed to be on the side of the employees. Whenever some small business man attacked labor, the government severely brought him to court. But when the large employers, organized, rich, the controllers of the two main political parties and their press, determined to smash the new aspirations of labor, the administration, still pretending to be on the side of the underdog, openly aligned itself with the wolves and lions. In the San Francisco general strike this attitude was given national recognition. In the surrender of the President and the administration to the employers in the case of the dismissal of a Hearst writer and in Newspaper Guild dealings, the actions were still more significant…

Said the American Civil Liberties Union report for this period:

“Describing local agencies of repression and attacks upon minority movements, our correspondents credited the American Legion with taking the lead in this patriotic job. Local Chambers of Commerce came second but quite a way behind; the D.A.R. pulled up third; with the Hearst press and the Elks making only a fairly respectable showing.”

Midsummer, 1936, with a definite trend upward in business, industry, stocks and popular optimism, it was possible to say that we were leaving the depression behind and to expect that with better times would come a restoration of civil liberties, a let-​up of repression. This did not happen. The attack by the Tories, economic royalists, and their patriotic and commercial agents continued and gave evidence soon to be confirmed in the national election, that it was the Right, not the radical Left, which was pressing the issues of class war in America.

Although the number of instances of serious violations of liberty decreased in 1936, the intimidation of the wage-​earning classes increased…

In 1935 (the 1936 Liberties Union Report shows) there were about 18,000 arrests of workingmen and women in petty cases of picketing, parading, demonstrating, distributing literature, etc., almost every one a violation of the civil liberty guaranteed under the Constitution.

The June, 1936, report of the same organization mentions the recrudescence of the 1920 Ku Klux Klan now transformed into a red-​baiting society. Its blood brother, the Black Legion of Michigan, was thoroughly discredited after several cases of murder had been traced to it. “A widespread tendency to terrorism, directed particularly against radicals and minority religious and racial groups,” is reported by the Union. It joins the Federal Churches of Christ bulletin in affirming that the year shows increased pressures against freedom in the schools: “The reactionary propaganda of the Hearst press and of the professional organizations…intimidated thousands of teachers.”

As to which pressure group is the worst enemy of liberty, the American Legion or the Chamber of Commerce, the evidence of twenty-​nine of the eighty-​nine correspondents of the Union placed the Legion first, the Chamber second, that year. “The next two most active agencies of repression reported were the D.A.R. and the Hearst press. Professional patriotic societies, assorted red-​baiters, and the Klan, Law and Order Leagues and foreign-​born Nazi and Italian Fascists brought up the rear.” (All of these anti-​libertarian organizations and movements will be discussed in separate chapters and the evidence which the Union has assembled and permitted me to study, will be given in part.)

In 1937, a new force joined the leaders of repression and intolerance. The June report, although encouraging, notes that the redbaiting campaign is increasing, that the red label is pasted on all kinds of progressive movements. Chief offenders are the American Legion, the Catholic Church, Chambers of Commerce, the D.A.R., Klan and Nazi agencies, and, of course, reactionary employers. This is the first mention of the Catholic Church, itself persecuted in the past and present. The Ku Klux Klan is resurgent. The rest are hardy perennials.

A survey of civil liberties published in 1936 by the research department of the Federal Council of the Churches of Christ in America states unqualifiedly that “during recent years events have indicated that vigorous efforts are being made by various organizations and certain newspapers to curtail civil liberties. These organizations frequently try to convey the impression that they are acting in the role of protectors of civil liberties. They assume that their definition of patriotism is the only true one, even if it involves denial of free speech, free press and freedom of assemblage. By their red-​baiting campaigns they try to establish the belief that our institutions are seriously threatened not only by left-​wing elements but also by liberals…

The libertarian forces are small but important in a time when the fight between capital and labor is no longer clouded in euphemism. Even today orators repeat that ancient falsehood: the interests of capital and labor are one. They are not. They are at war. There can be stalemate and armistice, even peace for a time, but the struggle grows more open, more intelligent, and sharper and more bitter. It affects not only employee and employers, but the few who come outside those terms; it affects us all. Victories and defeats in the violent present; red-​baiting marking the emergence of the powerful industrial unionization campaign; the new vigilante movement from Pennsylvania; the Chicago climax in the historical record of the police versus the public, now recorded in picture and sound and testimony, the lawlessness of the forces of the law, the fraudulent patriotism of the professional patriots, the fight of the profit-​seeking newspaper publishers against socially conscious newspaper writers, the arrogant defiance by the economic royalists of new social laws — all these events and movements are like parachute lights on the field of battle, showing up, sometimes gloriously, sometimes with ghastly definitiveness, the trench raids of the greater conflict between Reaction and Democracy.